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THE CONSTITUTIONAL LAW 



OF THB 



UNITED STATES OF AMERICA. 



BY 

Db. H. von HOLST, 

FUIVX COUKCIIjOB AKO professor in THB UNIVEBSTrT OF FSBtBUBO. 



AUTHORIZED EDITION. 

'dnivp:kmty 

TRANSLATED BY 

ALFEED BISHOP MASON. 



CHICAGO, nii. : 
CALLAGHAN & CJOMP.iNY. 

1887. 



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^- 



Entered according to Act of Congreas la the year eighteen hundred and elghty-oeren 

By OALLAOHAN & COMPANY. 

In the offlce of the Librarian of Oongreas, at Washington, D. C. 



DAVID ATWOOD, PBZHTSB AXD nmSOTTPEB, KADISOX, WIS. 



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EU^ITY 



PREFACE. 



This treatise on the constitution of the United States is 
but a sketch. I, this time, could not attempt to write a 
more pretentious work, for it was to form part of Mar- 
quardseu's " Ilandbuch des Oeffentlichen Eechts/' Ed- 
itor and publisher had to insist upon it that I^ like all 
the other contributors, consented to being bound by con- 
tract not to exceed a certain number of pages. Though 
they afterwards kindly allowed me nearly double the 
space originally agreed upon, yet no sooner had I dipped 
my pen into the inkstand than it became evident that 
even the most essential questions had to be treated with 
a brevity which more than once sorely tried my temper. 
Questions of less importance, though, too, of considerable 
interest, had to be compressed into a still smaller com- 
pass, and many a point which had found a place in my 
preparatory notes had to be thrown out entirely. 

The difficulty in deciding what to retain and what 
to let %o by the board, how much space to allow to 
each question and — last, not least — how to treat them, 
was greatly increased by the consideration ttiat I was 
to write for European readers. Even the foremost 
American authors could serve me but to a very limited 
extent as models, because they have all written for Amer- 
icans, while my task was not to be the instructor of those 
who are to the manor bom, but the cicerons of strangers. 
These having but little time to spare, and their interest in 
the subject being but limited and quite unconnected with 



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IV PBEFACE. 

any practical purposes, they expect to be shown what 
from their standpoint merits the most attention. Be- 
sides, everything has to be presented in such a manner 
that they can really understand what they see — in this 
case by no means an easy task, for even educated Euro- 
peans frequently show an astonishing talent for misunder- 
standing the most lucid expositions of American institu- 
tions and their working. 

It is not necessary further to enlarge upon these points, 
for what I have said is sufficient to show why the first 
inquiries with regard to a translation of the treatise were 
not received by me with a feeling of unmixed satisfac- 
tion. I not only could have dived deeper, and would 
have done so, if I had intended to write for Americans, 
but even if I had confined myself to a mere sketch, the 
perspective would have been somewhat diflFerent. Be- 
sides, the treatise had to be written at a time when I 
could not go either to England or the United States. 
My only literary resources were my private library and 
the notes previously taken in the British Museum and 
American libraries. 

These statements I have had to make in justice to my- 
self as a scholar and an author. To clear the way for a 
new book by explanations which have a rather strong 
flavor of excuses will, however, never be exactly to the 
liking of an author who thinks that he has any i-eputa- 
tion to lose. Nevertheless I have concluded, upon more 
mature reflection, to give my formal assent to having the 
treatise translated, trusting that the American public 
will deal with it not only fairly but with the same kind- 
ness with which they have received my other and more 
pretentious writings. I, of course, do not expect to see 
it in the hands of lawyers arguing constitutional ques- 
tions before court, or of statesmen busying themselves 



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PREFACE. V 

in congress to manufacture new constitutional nuts for 
judges, counselors and publicists to crack. But the jun- 
iors and seniors of the colleges, and perhaps even the 
students of the law schools, may find it quite a handy 
guide in the pursuit of their studies on the public law of 
their country. Nay, I am bold enough to hope that, as 
a convenient book of reference, if as nothing else, it will 
render some good services in the hands of men who have 
in no professional way anything to do with constitutional 
law, but are fully conscious how important it is that the 
citizea of a democratic republic stands on his own legs 
with regard to the public law of his country, instead of 
having implicitly to rely upon the wisdom of his daily 
paper and any stump speaker whom he may chance to 
hear. 

H. VON HOLST. 

Fbkiburg, i. B., June 4, 1886. 

[The translator has been aided in his work by Mr. 
C. J. Heyne.] 




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CONTEISPTS. 



Page. 

Past L Genesis of the CoNSTrrcnoN 1 

Pabt n. The Federal Constitution W 

PaBT m. CJONSTTTUTIONAL AND GENERAL LaW OP THE SEP- 
ARATE States 268 

Appendix: The Constitution, with Notes 837 

Index 861 






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THE CONSTITUTIONAL LAW 



OF 



THE UNITED STATES OF AMERICA. 



PART FIRST. 

GEITESIS OF THE FEDERAL CONSTITUTION 

AXTTHOBITDB. Peter Force: American Archives, 9 vols., Wash., 
1883-37. The Journals of Congress from 1774 to 1788, 18 vols,, 
PhOa., 1777-88 (4 vols., Wash., 1823). Secret Journals of the Acts 
and Proceedings of Congress from the First Meeting thereof to the 
Dissolution of the Confederation by the Adoption of the Constitu- 
tion of the United States, 4 vols., Boston, 1821. J. Elliot: The De- 
hates in the several State Conventions on the Adoption of the Federal 
Constitution as Recommended by the Oeneral Convention at Phila- 
delphia in 1787, together xoith the Journal of the Federal Convention, 
Duther Martinis Letter, Oates^s Minutes, Congressional Opinions, 
Virginia and Kentucky Resolutions of ^98 and *99, and other Illustra- 
tions, 5 vols., Phila., 1861. Journals, Acts and Proceedings of the 
Convention assembled at Philadelphia which framed the Constitution 
of the United States, Boston, 1819. The Federalist (H. B. Dawson's 
edition, 2 vols., Morrisania, 1864). 

The Works of Benjamin Franklin, 10 vols., Phila., 1840. The 
Works of John Adams, 10 vols., Boston, 1856. TJie Writings of 
George Washington, 12 vols., New York, 1852. Tfie Writings of 
Thomas Jefferson, 9 vols.. Wash., 1853. Letters and other Writings 
of James Madison, 4 vols., Phila., 1865. The Works of Alexander 
Hamilton, 7 vols., New York, 1851. The Works of Fisher Ames, 2 
▼oIb., New York, 1869. 

Sherman: The Governmental History of the United States of 
America from the Earliest Settlement to the Adoption of the Consti- 
1 



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2 CONSTITUTIONAL LAW OF THE UNITED STATES. 

tution, Phila., 1860. K. Prothingham : The Rise of the Republic of 
the United States, Boston, 1873. G. Bancroft: History of the United 
States, from the Discovery of the American Continent to the Close of 
the Revolutionary War, 10 vols., Boston, 1884-74. G. Bancroft: 
History of the Formation of the Constitution of the United States 
of America, 2 vols., New York, 1883. R. Hildreth: History of the 
United States from the Discovery of America to the End of the Siao- 
teenth Congress, 6 vols., New York, 1879 (new edition). G. Tucker: 
TJie History of the United States from their Colotiization to the End 
of the Twenty-Sixth Congress in I841, J. Grahame: The History of 
the Rise and Progress of the United States of North America from 
their Colonization till the Declaration of Independence, 4 vols., 
Phila., 1845. T. Pitkin: A Political and Civil History of the United 
States of America from their Commencement to the Close of the Ad- 
ministration of Washington, including a Summary of the Political 
and Civil State of the New England Colonies Prior to that Period, 3 
vols., New Haven, 1828. H. Von Hoist: Verfassung und Demokratie 
der Vereinigten Staaten von America, I. Theil, Dusseldorf, 1878 
(Von HoUVs Constitutional History of the United States of America, 
Vol. L, translated by John J. Lalor and Alfred Bishop Mason, Calla- 
ghan & Co. , Chicago, 1877). G. T. Curtis : History of the Constitutiony 
2 vols., New York, 1868. ^ 

§ 1. In Genbbal. Like every constitution which has 
or can have a real life, that of the United States of Amer- 
ica is a result of actual circumstances of the past and the 
present, and not a product of abstract political theorizing. 
It can therefore be understood and rightly judged only 
from the standpoint of the history of the development of 
the country. A knowledge of the facts of its origin is 
not,Jiowever, sufficient to understand and to judge it, 

1 For lack of space, I cannot enumerate many important biogra- 
phies. Unfortunately, I must abandon the idea of specifying the 
books (their number is by no means small) which lay claim to 
scientific treatment of their subjects, which, while of service on this 
or that point, are in general either worthless or are crammed full of 
stupid blunders. Books once named are not repeated in subsequent 
lists of authorities. In the case of current official publications (laws, 
stenographic reports of the debates of congress, etc) I do not gire 
the number of volumes. 



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GENESIS OF THE FEDERAL CONSTTrUTIOir. 3 

For, since the life of the people is the basis of the consti- 
tution, and undergoes a steady development, the constitu- 
tion itself, quite apart from any formal alterations, must 
have a certain cajmoity for change, and this not the less 
real because there is no formal statement of it in the 
instrument itself. A constitution which resembles a 
Chinese shoe can suit only a nation that has sunk into 
Chinese inertia. The fundamental law of a state must 
have, without hurt to its firmness, enough elasticity to 
be able to meet fully every new development of national 
needs, without, however, either breaking loose from its 
general framework, or subjecting this to sudden change. 
The real essence of the constitution, as it takes concrete 
shape in legislation, must grow and change with the 
advancing public and private life of the people. Thus it 
is always in a steady process of development. This is an 
absolutely essential element in forming a judgment upon 
it, but is wholly ignored when it is interpreted simply by 
the rules which are binding upon judges in the applica- 
tion of ordinary statutory law to cases before them. 
These rules, indeed, are of full force in regard to the 
fundamental law, but the latter must nevertheless always 
be read, considered and criticised by the light of history.* 
If the statesman is bound to be, in the practical di^ 
charge of his duties, a conscientious jurist, the jurist 
must, in his work of examination and testing, always 
keep in mind the point of view of the statesman. 

§ 2. HlSTOBY OF THE OEIGm OF THE UniON. — ThB 

Artioles of Confederation. The English colonies which 
changed themselves, July 4, 1776, into the United States 
of America had always — with the exception of the Dutch 
period of New Amsterdam (New York) — had an indi- 

iPomeroy: An Introduction to the ConsHttUiondl Law of the 
United States, m^^^^' 






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4 CONSTITUTIONAL LAW OP THE UNITED STATES. 

rect legal relation to each other, because they were all 
subject to the political control of the same mother- 
country. But quite apart from this, some among them 
very early established closer ties with one another. The 
contiguous territory of the colonies and the equality in 
outward conditions of life among the colonists developed 
a community of interests which grew steadily both broad 
and deep, and at last necessarily became stronger than 
the bonds of law which knit the separate colonies to the 
mother-land. On the other hand, the political and social 
organization of the different colonies took such different 
shapes, and the sparseness of the population and insufficient 
means of communication did so much to promote sepa- 
rate development, that from the very beginning of these 
gropings after union a tendency to limit the union at 
any rate to what was absolutely necessary showed itself 
clearly. The wishes and struggles of the people for 
political union did not hurry ahead of the development 
of actual circumstances. At the most they kept step 
with this development. Often they hobbled behind it 
slowly and unwillingly. The league of the united 
colonies of New England, — Massachusetts, Plymouth, 
Connecticut and New Haven, — in 1643 against the In- 
dians and the Dutch, lost all significance with the occasion 
which had called it into life. After its unwept death 
decades passed by before there were any noteworthy signs 
of the existence of a wish to frame a new, broader and 
closer alliance. Outside enemies again gave the impulse, 
and the mother-country took the initiative. On account 
of the threatened war with France a congress was called 
at Albany in 1754:, at which New Hampshire, Massachu- 
setts, Ehode Island, Connecticut, New York, Pennsyl- 
vania and Maryland were represented. But while 
England expected to gain by this only more assurance of 



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GENESIS OF THE FEDERAL CONSTITUTION. 5 

the safety of the colonies, and desired especially the 
establishment of a good understanding with the Indians, 
the representatives of the colonies were excited by 
thoughts of a permanent league with correspondingly 
wide aims.* Their suggestions, however, not only were 
received with no favor by the English government, 
but were rejected by all the colonial legislatures, with- 
out exception. The strife with the mother-country 
over the right of parliament to lay taxes on the colonies 
first made the latter see that their deepest interests made 
their firm alliance an imperative necessity. Nine colo- 
nies were represented at the congress at New York in 
October, 1765, which was answered by the repeal of the 
Stamp-act. The more the conflict took the shape of a 
revolution, the more overwhelming became the conviction 
that there was no longer a struggle between a number of 
like-minded colonists and the mother-country over a 
greater or less share of political rights, but that in fact 
against European England an America was arrayed. The 
more the colonies adapted their acts to this fact, the 
more they were impressed with the other fact, that just 
so far as they were conscious of belonging to each other, 
they were forced into a position apart from the rest of 
the world. They could not make simply ad hoc an oflfen- 
sive and defensive alliance, if the common weal was to be 
victoriously won, but at this time, long before the swing 
of mind and spirit had reached its highest point, every 
suggestion of a complete fusion was rejected decisively 
and with increasing emphasis. The congress which met 
at Philadelphia early in September, 1774, was attended 
by delegates from all the colonies except Georgia, was 
called a ^^ continental congress," and spoke in the name 

iSee Kent: Commentaries on American Law, L, pp. 20i-5« 



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6 OONSTTrtJnONAL LAW OF THB UNITED STATES. 

of " the good people of these colonies," but it immedi- 
ately voted that each colony should have an equal voice. 
This remained the rule in the second continental con- 
gress, which began its session May 10, 1775, at Philadel- 
phia. In this, Georgia also was finally represented. The 
strife was now transferred from the forum to the tented 
field. Congress did not limit itself to trying to do what 
a goneral war demanded, such as the equipment of a con- 
tinental army, the creation of a common treasury, etc., 
but it set itself up — without being regarded on this ac- 
count as stepping beyond its powers — as an authorized 
leader of the colonies in their separate affairs, since it 
exhorted them to give themselves governments such as 
their needs and the common welfare demanded, and ex- 
pressed the belief "that the exercise of every kind of 
authority under the crown of Great Britain should be 
totally suppressed." Not in pursuance of resolutions of 
the legislatures or of any extraordinary representative 
assemblies of the people of the different colonies, which 
might have given instructions binding upon the respective 
delegates, but by virtue of its own revolutionary author- 
ity, which, because it was revolutionary, had, and could 
have, no legal limits, congress stepped forth as the sole 
representative of the commonwealth to act for the com- 
mon weal in accordance with this conviction. June 10, 
1776, it voted to appoint a committee to draw a dec- 
laration " that these united colonies are, and of right 
ought to be, free and independent states." 

As congress acted as a revolutionary representative of 
the entire commonwealth, so from the beginning it 
claimed full political independence and sovereignty only 
for the colonies as a united whole. The resolution passed 
on the following day to appoint a committee to draft a 
plan of confederation was, therefore, not only a direct 



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GENESIS OF THE FEDEJRAL OONSTITUTION. T 

result of, but was already contained in, the resolution of 
the 10th, Since the decision of congress was ratified by 
the acts of the colonies, its formal ratification by the gov- 
ernments or people of the different colonies was thought 
unnecessary and did not take place.^ The declara- 
tion of independence, a formalization on the 4th of 
July of the resolution of the 10th of June, did not 
concern itself as to whether the colonies as states 
should enter into a political league of some kind or other, 
but simply as to how the Union, made as a matter of fact 
long before and now declared to exist as matter of law, 
should be shaped in detail. The constituent members of 
the Union have never legally or actually been " free and in- 
dependent states '* in the full and proper sense of the term.* 
As Lincoln said, the Union is older than the states, and 
the states became " states " only as constituent members 
of the Union; and the word "state" has, therefore, al- 
ways had in America, legally and actually, only a limited 
meaning, which excludes the idea of " sovereignty " in. 
the full and proper sense of the word. 

It was more than a year (November 15, 1777) before 
<X)ngress finally decided how its own revolutionary au- 
thority, which so far had been limited only by its own 

1 The next resolution, which has been much too little considered in 
the conflict over questions of constitutional law, as to the political 
nature of the Union, cannot be harmonized with any other view than 
that here exprassed. It reads: " Resolved, that copies of the decla- 
ration be sent to the several assemblies, conventions and committees, 
our oonnciis of safety, and to the several commanding officers of the 
continental troops; that it be proclaimed in each of the United 
States and at the head of the army." 

SRnttimann, in his Das Nordamerikanische Bundesstaatsrecht (L, 
dS), affirms the contrary, but bases his opinion too closely upon the 
aasumption that each colony had *' its own constitution and a full 
political organization complete for aU public purposes." Moreover, 
there are weighty arguments easy to cite against this latter assertion. 



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8 CWNSTITUTIONAL LAW OF THE UNITED STATES. 

ideas and by pubUo opinion, should be brought under 
and within fixed legal forms. The conclusions reached 
placed the Union upon a wholly new basis. The very 
title of the proposed paper showed this clearly. It was 
not a constitution, but " articles of confederation." The 
change was even more apparent in the opening sentence. 
In the declaration of independence the separate colonies 
are not once named. At the end, it says : " The forego- 
ing declaration was, by order of congress, engrossed and 
signed by the following members." Under the signature 
of the presiding officer followed those of his colleagues 
in the order of their states. The name of the state was 
prefixed to the names of its representatives, without the 
addition of a single word. Now, on the contrary, there 
was an enumeration of the separate states whose " dele- 
gates" had, according to the next article, agreed upon a 
" confederation and perpetual union," but nothing more 
was said of the " people," of whom the first sentence of 
the declaration of independence had spoken. So, too, 
the articles of confederation did not begin with a recital 
of the rights and powers of the Union. 

The second article — the first relates only to the name — 
declares that " each state retains its sovereignty, freedom 
and independence," as well as every power and every 
right not "expressly " delegated to congress. The third 
article takes a still more significant step forward, for it 
declares that " the said states hereby severally enter into 
a firm league of friendship with each other " for the pur- 
poses enumerated. Thus, in boldest opposition to facts, 
the Union appears, in the articles of confederation, as 
being first called into life by them, and the character of 
a simple league of states, now really given it for the first 
time, is put forward as one in full conformity with the 
actual and legal facts of the past. Congress transformed 



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GENESIS OF THE FEDERAL CONSTITUTIOX. 9 

itself, SO far as the nature of the mandates of its members 
was concerned, from a (revolutionary) government into a 
congress of delegates, for the right of recalling the mem- 
bers was reserved to the states. It is not expressly de- 
clared that this right belongs to the legislature, but the 
method of electing their delegates is wholly remitted to 
them. The people are mentioned only here and there as 
an object of the Union. As the source of power and as 
self-governing they never appear. So far as the Union is 
concerned, the legislatures are treated as the sole and un- 
limited bearers of sovereignty. They were to ratify the 
articles of confederation, and give them, by this ratifica- 
tion, the force of law, although they had been authorized 
to form a constitution for the Union, neither by the con- 
stitutions of their respective states, nor in any way what- 
ever. Moreover, changes in the articles were made 
dependent upon their approval, and the consent of all the 
legislatures was required for the slightest change. Con- 
gress exhorted the legislatures, by an act of public usur- 
pation against the legal consequences of historical facts, 
to transform the Union into a league of states, and the 
legislatures recklessly responded to this demand. The 
circumstance that some of them delayed, and for so long 
a time refused, their ratification was in no way connected 
with their legal incompetence, and did not result from 
any wish to keep for the Union the political nature given 
it by the course of the Eevolution, They considered it 
as self-evident that congress, during this whole time, re- 
garded the articles of confederation as having the force 
of law, and they would have offered the most stubborn 
opposition if it had sought once more, as in the beginning 
of the Revolution, to fix the boundaries of its own power. 
While it was recognized that the decisive steps of the 
continental congress had created a legal static for the 



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10 CONSTITUTIONAL LAW OF THB UNITED STATES. 

XJnited States, not only as against England and the rest 
of the world, but also in relation to the different states, 
yet it cannot be questioned that, with the adoption of the 
articles of confederation, a revolution was accomplished. 
This revolution met with no opposition among the people. 
Its entire correspondence with their whole political 
thought and impulse was generally fully recognized, and 
another advance on the part of congress would unques- 
tionably have met with an opposition not to be over- 
come. 

The legal consequences of the decisive steps taken by 
the continental congress in regard to the relation of the 
colonies, i. e., the states, to each other, went far beyond 
the actual facts of the case, and in a conflict between law 
and fact it goes without saying that the latter must tri- 
umph. The population of the states was so little one peo- 
ple, and felt so little as one people, that they wished to be 
one, in the most essential matters, only far enough to con- 
quer independence, and to assert their right to self-govern- 
ment.^ It was supposed that the articles of confederation 
had preserved the powers which the central authority 
needed for the accomplishment of this first and most impor- 
tant end of the Eevolution, but long before they had been 
ratified by the last legislature (that of Maryland, March 1, 
1781), the bitterest experience had made it a question of 
the highest importance as to whether this view was sus- 
tained by hard facts. The weightiest rights of sover- 
eignty essential to political life were, of course, granted 
to congress, and either wholly withdrawn from the sep- 
arate states or given them only within very deeply cut 
limits. But it was soon evident that a wholly useless 

^The fourth article contains proTisions in regard to pui^ly internal 
relations, and especially in regard to the interests and rights of indi- 
TidualSj which paved the way for a national fusion. 



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GENESIS OF THE FEDERAL OONSTITUTION. 11 

piece of political machinery had been created, which, 
under the best management, could turn out only quite 
useless work, and finally could not have been kept in 
order at all, if a number of distinguished men, with ex- 
traordinary patriotic abandonment and unselfishness, had 
not constantly put their shoulders to the wheel, and, by 
their great example, drawn the rest of the people so far 
after them that the worst was always happily avoided, 
until, with the help of France, the recognition of inde- 
pendence had been won. The question early pressed 
itself upon the most far-sighted patriots where the fault 
lay. Experience made them more and more of the opin- 
ion that the fault was one of principle, based not only 
upon the selfish wish of the states to remain just as far as 
possible the sole masters of their own fates, but partly 
also upon the fact that during the colonial period no ex- 
perience had been gained as to the nature and proper 
conditions of existence of a great and entirely independ- 
ent political commonwealth. The provisions which gave 
all the states the same legal weight, although their 
actual importance was so very different — for the weight- 
iest decisions the approval of at least nine states was 
necessary, — were responsible for much, but the real 
evil evidently lay deeper. Matters were not in a bad 
shape because congress failed in passing the necessary 
resolutions and laws, but because its resolutions and 
laws had no result. The articles of confederation failed 
to recognize not only the fact that a free commonwealth 
may be no less endangered by a government too weak 
than by one too strong, but also that a grant of rights in 
itself confers no power. Eight first becomes might when 
means are given it to make itself so, and these means had 
been denied to congress completely and on principle. It 
could resolve on everything necessary, but it could not 



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12 CONSTITUTIONAL LAW OF THE UNITED STATES. 

do the most necessary thing. The execution of its reso- 
lutions depended wholly upon the thirteen state govern- 
ments, to whose short-sightedness, laxity, distrust and 
separatism it could oppose only arguments and an appeal 
to patriotism, which, in the nature of things, under the 
most favorable circumstances, could have only a partial 
result. Congress wished to be a government, and yet 
could only give advice, because it had a legal will, not in 
reference to individuals, but only as regards the states. 
This was no omission in the articles of confederation, but 
a logical consequence of their fundamental principle. 
They left no room for organs of government. The 
United States were a confederation with a federal au- 
thority, but without a federal government ; and they had 
a federal law, but needed no federal courts, because the 
states were almost exclusively the subjects of federal law ; 
and behind the federal courts no federal power was cre- 
ated to give effect to their judgments.^ 

^Article IX. gives oongress the power to establish prize courts and 
'* courts for the trial of piracy and felonies committed on the high 
seas." Moreover, ** aU controversies concerning the private right of 
soil claimed under different grants of two or more states," and " all 
disputes and differences now subsisting, or that hereafter may arise 
between two or more states, concerning boundary, jurisdiction, or 
any otiier cause whatever," were to be decided by federal courts, in 
case one of the parties applied to congress. But these courts were 
not permanent. They were created by congress ad hoc, and that in 
a highly complicated and cumbrous way. The view expressed in the 
text finds its direct proof in the provision that, *' if any of the parties 
shall refuse to submit to the authority of such court, or to appear or 
defend the claim or cause, the court shall nevertheless proceed to 
pronounce sentence or judgment, which shall in like manner be final 
and decisive." But nothing was said as to what should happen in 
I case of a stubborn refusal to obey the judgment. Reporting the de- 
cision to congress is the only " security " given the parties. See T. 
Sergeant : On the National Jvdiciary Powers Prior to the Adoption 
of the Constitution, appendix to P. S. Duponoeau: Jurisdiction of 
United Sttites Courts, PhUa,, 1824. 



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GENESIS OF THE FEDERAL CX)NSTITUTION. 13 

§ 3. Efforts for Reform. During the war, and even 
before the articles of confederation had received the for- 
mal sanction of the last state, the knowledge of the fact 
that the Union could not endure under its then organiza- 
tion had so far progressed that complaints and sorrows 
had given way to earnest attempts at reform. In No- 
vember, 1780, delegates of the four New England states 
and of New York met at Hartford. Their immediate 
object was to place the finances of the Union upon a ^ 
firmer basis, and especially to ensure the payment of in- 
terest on the federal debt through federal taxes or cus- 
toms, but they were entirely conscious that this alone 
would be of no use. "All government supposes the 
power of coercion," they said in their address to the 
states. Of course, this had no immediate result. One 
could scarcely have been expected. It gave, however, a 
strong push in the right direction, and the work of mould- 
ing public opinion never ceased thereafter until the goal 
had been reached. A growing necessity forced men to 
lay their hands to the work again and again. The use- 
lessness of all half-way measures showed more clearly, 
day by day, the only road to safety. Destruction often 
seemed unavoidable, unless, at least, the worst evils could 
be removed. The failure of the attempts to accomplish 
even this constantly drove home the conviction that the 
evil must be grappled with at the roots. The necessity 
of obtaining the approval of nine states for the more 
weighty decisions of congress, and of getting the consent 
of all of the legislatures for any constitutional change, 
made the application of palliatives impossible. Since 
this was impossible, a radical cure had to be found. But 
the struggle of many years over the palliatives did this 
further great good, that, day by day, it became more 
clear upon what points attention was to be concentrated, 



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14 CONSTITUTIONAL LAW OF THE UNITED STATES. 

if the people were to be made ripe by necessity for the 
adoption of a reorganization of the Union upon the basis 
of another principle. Later, it was recognized as a piece 
of good fortune that the revolutionary war had been 
fought out under the articles of confederation, and the 
reorganization of the Union first undertaken after inde- 
pendence had been won. Under the pressure of the 
needs of war single improvements might have been more 
easily carried through, but the deeper and the more im- 
portant these partial improvements were, so much the 
more difficult would have become a reorganization of the 
Union, complete and based upon principle. This could 
not possibly have been sought with success during war, 
at least during one which was, to a certain extent, a civil 
war. Peace alone could fully show where and how far 
the articles of confederation failed to ensure a permanent 
Union. Such a government must be equal, not only to 
the exceptional circumstances of a war, but, before every- 
thing else, to the accomplishment of the aims of the 
Union in the normal condition of peace. If the demands 
which congress had to meet in time of war were not 
only different from, but also many times greater than, 
those of peace, yet upon the other side patriotism and 
the overwhelming necessity of the attainment of the im- 
mediate end of the Revolution insured more willing and 
careful attention to the needs of the commonwealth than 
when, in the sober selfishness of times of peace, the neces- 
sity for this attention no longer forced itself, day by day, 
upon even the smallest understanding. As the pressure 
of war grew weaker, the evils of an unworkable govern- 
ment first fully developed. The prophetic phrase of the 
Hartford convention of November, 1780, that, after the 
acquisition of independence, peace and freedom could be 
won only by the legal consolidation of the Union, now 



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6EN£8I8 OF THE FEDERAL CONSTITUTION. 15 

found its fulfillment in a fashion which opened a darker 
outlook into the future than in the blackest days of the 
war. Now the most far-sighted felt their courage sink, 
while the short-sighted were blind, and the self-seekers 
and ignorant recklessly sought to use for their own ad- 
vantage the evils which preyed on the life-blood of the 
Union. The political thought, feeling and will of the 
people in regard to the Union threatened to fall into a 
process of dry rot. The best men, who had done the 
best in time of war, therefore drew very close together 
in the knowledge that danger lay in delay and that they 
must not relax their efforts until they had wrung from 
selfishness, from doctrinaire confusion, and from the nar- 
row pride and patriotism of the separate states, the salva- 
tion of the commonwealth which had been called into 
life at such a terrible cost. 

§ 4. HiSTOBY OF THE DEVELOPMENT OF THE CoNSTnU- 

TioN. In January, 1786, the legislature of Virginia in- 
vited the other states to send delegates to a convention 
at Annapolis, in order to consider how far a uniform 
system was* necessary for the regulation of commerce, 
and to make proposals on this point. At the convention, 
which met in September, only five states were represented* 
Partly on account of this scanty representation, and partly 
because they saw nothing to be gained from the considera- 
tion of only one of so many weighty questions, the delegates 
resolved to leave their task undone and to call, instead, a 
general convention " to take into consideration the situa- 
tion of the United States," and to ascertain what must 
be done " to render the constitution of the federal gov- 
ernment adequate to the exigencies of the Union." The 
legislature of New York adopted this proposal as its own* 
On the motion of its delegates, congress voted in February, 
1787, to call a convention at Philadelphia, " for the pur- 



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16 CONSTITUTIONAL LAW OF THE UNITED STATES. 

pose of revising the articles of confederation, and report- 
ing to congress and the several legislatures such alterations 
and provisions therein as shall, when agreed to in congress 
and confirmed by the states, render the federal constitu- 
tion adequate to the exigencies of government and the 
pi-eservation of the Union." All of the legislatures, with 
the exception of that of Bhode Island, responded to this 
call by naming delegates. The convention met at Phil- 
adelphia, May 14. It was the 25th of May before a 
sufficient number of states (seven) were represented to com- 
plete the formal organization of the convention by the 
choice of Washington as presiding officer, and to begin 
work. Meanwhile, the time had not been suffered to slip 
by unused. The delegates from Virginia, whose official 
head was Edmund Eandolph, but whose brain was James 
Mudison, had agreed among themselves that a simple 
modification of the articles of confederation would not do, 
but that, as Washington had written to Madison on the 31st 
of March, it was their duty " to probe the defects of the 
constitution to the bottom and provide a radical cure." 
The main points as to the way in which this was to hap- 
pen had been reduced to writing, and they were laid 
before the convention by Randolph, in order to give a 
firm basis for its deliberations. This was of great im- 
portance, for Virginia was the strongest and most influen- 
tial state of the Union. The tardiness of the delegates 
of most of the states (Rhode Island never sent delegates 
to the convention) was not adapted to strengthen the 
hopes of the patriots. The instructions given by Dela- 
ware to her delegates, to insist upon it that, as hereto- 
fore, every state should have an equal voice in the 
Union, of necessity strengthened the fear that now again 
no result would be reached. Nevertheless, the conven- 
tion adopted Washington's view that it must turn out a 



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GENESIS OF THE FEDERAL CONSTITUTION. 17 

finished piece of work, even if, as a result, its proposals 
were rejected. Its success was, of course, from the begin- 
ning greatly endangered, because the resolution of con- 
gress, literally read, imposed upon it a much more limited 
task, and the instructions of its delegates, so far as 
these fundamental questions were concerned, were in 
part in harmony with the resolution of congress. But 
the great majority of delegates were of the opinion that 
the convention was not to be bound by this formal inyi- 
tation, if, in its opinion, its aims could not be reached 
by keeping within the limits set by that resolution 
and by the instructions of its members. Wholly inde- 
pendent of the existing law, it went on with its task to 
work out a plan for the formation of a Union capable of 
life and of development. It considered the articles of 
confederation only so far as the experience gained under 
them showed the errors to be avoided, and always with a 
constant and comprehensive appreciation of the fact that 
a Union capable of life and of development could be 
formed only by adapting it to the facts of the past and 
the present, and not by doing violence to them for the 
sake of any theory. The articles of confederation also 
had not been a product of doctrine alone, and the actual 
facts which had found in them an adequate expression 
were still a strong factor, even if somewhat weaker than 
before and no longer with the same claim to attention, 
because far-reaching changes had been accomplished or 
at least begun in the political feeling, and especially in 
the political knowledge, of the people. The knowledge 
that all the faults of the articles of confederation must be 
finally referred to their fundamental principle therefore 
could not mislead the convention. By adopting exactly 
the opposite direction, it was sure not to wander from the 
right path. Although it was compelled by necessity to 



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18 CONSTITUTIONAL LAW OF THB UNITKD 8TATBS. 

give the Union another principle as a basis, yet the great 
question still remained whether it would do this with the 
necessary completeness and follow out the main lines of 
thought to their necessary results. Even if it decided to 
do so, it was still doubtful whether enough of the spirit 
of statesmanship could be found to so fashion the details 
of its task that on the one side sufficient care was taken 
to fully satisfy all the great needs of the state, and yet, 
upon the other hand, this was not reached by a consol- 
idation which was not adapted to the actual condition of 
affairs, either in fact, or, at any rate, in the opinion of 
the majority. Every page of the history of the Union 
up to that time testihed to the fact that this .was a task 
which made the highest demands upon the political in- 
sight, as well as upon the patriotic self-sacrifice, of the 
delegates. The greatest difficulties grew out of the 
special interests of the slave-holders in the southern 
states, and out of the enormous differences in the size 
and population of the separate states; differences which, 
so far as concerned the population, were sure to increase 
constantly. These special interests of the slave-holders 
were, for two generations, the central problem of the his- 
tory of the United States. The solution was found in a 
civil war which lasted four years. Since in this book the 
history of the constitution needs to be touched upon only 
so far as required in order to understand the constitu- 
tional law of to-day, we must omit any discussion of the 
constitutional provisions concerning slavery, because, 
apart from some indirect consequences which will be 
mentioned by-and-by, slavery in the United States belongs 
as completely to the history of the past as serfdom in Ger- 
many. Only this much must be said, that the representa- 
tivesf of the northern states agreed upon a compromise 
^e some of the delegates on the other side declared 




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GENESIS OF THE FEDEBAX CONSTITUTION. 19 

that their states would never adopt a constitution which did 
not respond to their demands in regard to this overshad- 
owing interest. Concerning representation, it was agreed 
that every five slaves should be reckoned as three free- 
men. The slave states thought they obtained an equiva- 
lent for this in the provision that direct taxes should be 
levied according to representation. As a further conces- 
sion to the slave-holder, it was agreed that fugitive slaves 
should be delivered up by the other states upon demand. 
Finally, the immediate suppression of the African slave 
trade was postponed, but congress was given the right to 
forbid the importation of slaves after twenty years, i. <?., 
in 1808. It was thought that this provision ensured the 
gradual dying out of slavery, something which was still 
generally considered, or at least declared, desirable. In- 
asmuch as there was still no opposition to the opinion 
that slavery was a curse laid upon the land by England, 
great care was taken not to give the words slave and 
slavery a place in the constitution. They were expressed 
by the circumlocution: "persons held to service or labor." 
The question as to what should be done with the slaves 
as far as representation was concerned had had, as its 
condition precedent, that the absolute equality of the 
states established by the articles of confederation could 
no longer endure, i, «., that each state could no longer 
have an equal voice in the government of the Union. But [ 
with this change the Union ceased to be a league of states. I 
Whatever arrangement T^M^^^^^i^^b^v^as cha^ 
into a federal state. How^HJ^^^^^K^as 
done, and how strongly the nationaJ^HM^^Bwas 
pear in this consolidation, naturally depenBi howev^ 
in the first place, if by no means exclusively! upon the 
question how far and in what way the actual importance 
of the separate states was to be the basis of their lawful 




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20 C0N8TITUTI0NA.L LAW OF THB UNITED STATES. 

participation in the federal power. The smaller states 
wished to maintain, just as far as possible, the then con- 
dition of affairs, and the large ones wished to make the 
reform as thorough as possible. This was not on account 
of any national feeling. The position of each state was 
determined by its separate interests. The smaller states 
thought that in a short time they must sink to the posi- 
tion of mere hangers-on, simply the recipients of the laws 
dictated by the large states, if the constituent members 
of the Union were to find their representation amid the 
federal powers no more as such members, but according 
to their population. The large states, to whom the actual 
or at least the claimed extent of their territory and their 
natural riches promised a development of power scarcely 
to be reckoned, did not wish to endanger this, and to let 
their people sink, in a certain sense, into citizens of the 
second class, ten, twenty, or one hundred of whom would 
be counted in all federal affairs only for as much as each 
citizen of the small states. Since the latter based their 
demands upon the actual law, and the application of force 
could not be thought of, and since the former were not at 
all in favor of a complete national fusion, a compromise 
between the two opposing interests had to be found. It 
was found when the law-making power was shared be- 
tween two co-ordiijate houses — one of them organized, 
as the large statesj wished, upon the democratic principle 
of numbers, while in the other, the states, as such, were 
represented, althAigh, as I shall show later, the character 
of a house of stat4jL was not given to it in other respects. 
Jefferson, in ihjsrdemocratic doctrinairism, even after 
the constitutiQ^' lji.d come to life, complained bitterly of 
the adoption^ iHW^® two-chamber system, but he forgot 
that this woul(^';1iat have happened in the first place if 
the choice \d^ been simply between one and two houses, 

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GENESIS OF THE FEDEBAL CONSTITUTION. 21 

It happened because this decision made possible the estab- 
lishment of the Union in a way in which it could live. 
So far as this was concerned, the weightiest point was 
that now, for the first time, a real law-making power had 
been created. Congress was no longer obliged, upon the 
address of the .states, to pass resolutions in the shape of 
laws, but it could now pass laws for the people of the 
United States, and could intrust the execution of federal 
laws affecting single citizens to the proper federal pow- 
ers. The Union had obtained such an independent law- 
making power that it could no longer be deprived of its 
own permanent courts. The emancipation of the Union 
from the state governments depended directly upon its 
emancipation from the state courts, for it would have 
been absurd to give it a wider sphere of jurisdiction of 
its own, and yet to deny it the organs needed for exist- 
ence within that sphere. The union of an independent 
law-making power, of an independent executive and 
administration and of independent courts was, however, 
a notional government in the full sense of the word. So 
far as principles were concerned, Washington's wish had 
come to fulfillment. The convention had decided upon 
the adoption of a radical cure. It was not simply that 
the powers of the single federal authority (the old con- 
gress) were now shared between three co-ordinate factors, 
but these were actual national powers which together 
formed a national government, because they were en- 
dowed not only with rights, but with the power to enforce 
those rights. So far as everything within the domain of 
the national authority was concerned, the political will 
of the commonwealth, expressed in a constitutional way, 
was placed high above the political will of the constituent 
members of that commonwealth and of their political 
organs. The subordination of the latter was brought 



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22 CONSTITUTIONAL LAW OF THE UNITED STATES. 

about by the use of those fixed forms in which the life of 
a modern constitutional and lawful state can pursue its 
steady and orderly course. 

Opinions were sharply opposed, not only about the 
ground-plan of the constitution, but also about the de- 
tails by which this plan was to be filled. . The holders of 
all of these views were forced, now one and now another, 
to remember not to let the better become the enemy of 
the good, and not to fear the worst possible consequences, 
because in this or that state of affairs something either 
undesirable or utterly repugnant might happen. The 
convention could not possibly draw a constitution which, 
in the forum of theory, would appear as a blameless 
and perfectly harmonious work. But such a constitu- 
tion would have been of scant use to the United States, 
for the real conditions could not be compressed into 
rigidly logical form. The convention, which brought its 
work to a close September 17, characterized it in its 
address to congress as *' the result of a spirit of amity 
and of mutual deference and concession." Since its task 
had not been to draw a model constitution, this was the 
best recommendation of its work, for, as it said, many- 
sided concession was "rendered indispensable" by the 
" peculiarity of our political situation," and in the nature 
of things that could not happen which the welfare of all 
demanded unless all made sacrifices to that end. It laid 
claim to the highest grade of perfection for its work, 
gave it the highest praise possible, when it expressed the 
conviction that the constitution was "liable to as few 
exceptions as could reasonably have been expected." 
Whether this self-criticism was well founded only the 
actual trial of the constitution could show. And whether 
that actual trial would be had was still by no means cer- 
tain. It was only too sure that the draft, as it is called 



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GENESIS OF THE FEDERAL CONSTITUTION. 23 

in the address to congress, would not command universal 
acquiescence. Since the convention was convinced that 
the fate of the Union depended upon the adoption or re- 
jection of the constitution, it had taken care not to leave 
the weal and woe of the commonwealth wholly in the 
hands of a lessening minority. Although the articles of 
confederation required the consent of all the states for the 
least change in the constitution, and the convention had 
only been authorized to consider a revision of these arti- 
cles, it had yet ventured in its proposal for a radical re- 
organization of the Union to adopt the provision that the 
new constitution should come into-.force as soon as it had 
been adopted by nine states.^ This did not involve any 
tyranny by a majority, because it was expressly provided 
that the ratification was to be good only for the ratifying 
states.^ In case four states or less than four did not ratify, 
they thus ipso facto cut themselves out of the Union until 
they thought good to re-enter it, or the other states, 
perhaps by force of irresistible necessity, compelled them 
to do so. But such compulsion certainly could have been 
tried with success only against the smaller states, and in 
that case, as we shall later see more closely^, the whole 
fundamental law of the new federal power would have 
been shattered and racked in a terrible way. This pro- 
vision was therefore a two-edged sword. On the one 
hand it was made very difficult for political blindness and 
the lack of national feeling to hinder the reorganization 

1 Cooley, ThA OeneraJ Principles of ConstitutumcU Law, page 16, 
rightly says : " It was a revolutionary proceeding." 

2 Since Schlief , Die Verfassung der Nordamerikanischen Union, is 
often cited by German authors, I think it my duty to show by ex- 
ample how little trustworthy a guide he is. He says, p. 8: "The 
fundamental law, according to article 7, was to come into force for 
all the states represented in the convention at PhUadelphia, when 
nine of them approved it" 




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24 OONBTITCnONAL LA.W OF THB UNITED 8TAXES. 

of the Union, but on the other hand this might easily 
bring about such an explosion of these forces that the 
damage done could be repaired, if at all, only by doing 
violence to the fundamental principles of the Union. 
There was another scarcely less significant possibility. It 
might be that nine or even ten states would adopt the 
constitution, and yet, as a result of the opposition of one 
or two states, the Union, in its new organization, backed 
by force of law, and with a constitution containing within 
itself all the conditions of life and development, would 
yet be from the very beginning a torso, incapable of life. 
For an instant it seemed as if this mischance would hap- 
pen. 

June 21, 1788, New Hampshire ratified the constitution. 
She was the ninth state to do so. Among those which 
had not ratified it were Virginia and New York. The 
first had taken such a position in the Union since the days 
of the continental congress, that the nation, without Vir- 
ginia, would have been like Hamlet without the rdle of 
Hamlet. Public opinion was so evenly divided in Vir- 
ginia, that a very little would have sufficed to turn the 
balance in the wrong direction. From the beginning of 
the debates in the ratification convention it was easy to 
see that the simple rejection of the constitution was not 
to be feared, but up to the last instant it seemed not im- 
possible that the ratification would be merely a conditional 
one. Many not only shared Patrick Henry's belief that 
Virginia was in a position to dictate her own conditions 
to the other states, but they also agreed with him in his 
wish to do so in such a way that her ratification should 
be made dependent upon the adoption of certain amend- 
ments by the other states. In the vote upon this main 
proposition, the opposition came within eight vot^ of a 
majority, and the simple ratification was then carried by 



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GENESIS OF THE FEDERAL OONSTITUTION. 25 

eighty -nine to seventy-nine. In New York, the condition 
of affairs was somewhat diflferent. New York was then 
far removed from being what she is now, the Empire 
State, bat it could not be denied that she had a great 
future, and her geographical position from the ocean to 
Lake £i*ie made her an absolute necessity. If she did not 
come into the Union, it was torn asunder into two halves 
which could not possibly remain bound together; for the 
geographical continuity of the national territory was a 
condition precedent of that free exchange of opinions, 
customs and interests, the. difference in which had been 
stigmatized by the Philadelphia convention iu the address 
to congress, as the main source of the difficulties with 
which it had had to fight. While in New York, Alex- 
ander Hamilton, with the aid of John Jay, and especially 
of Madison, wrote in the eighty-five numbers of the Fed- 
eralist the classic argument against the articles of confed- 
eration, and in favor of the new constitution, yet here 
also the opposition was the most passionate and stub- 
born. Yates and Lansing, who, with Hamilton, repre- 
sented the state in Philadelphia, had been sustained by 
public opinion when they withdrew from the convention, 
because it over-passed its powers. Now the opposition, 
led by Governor Clinton, was so obstinate that even Ham- 
ilton doubted for an instant whether it would not compel 
concessions to it. If Madison and his friends had not car- 
ried the day in Virginia, the friends of the constitution in 
New York would unquestionably have lost the victory. 
But even the example of Virginia weakened the opposition 
in the ratification convention at Poughkeepsie only so far 
that they were willing to agree to ratification if the state 
reserved the right of re-calling it in case the other states 
did not approve the amendments demanded by New York. 



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2b CONSTITUTIONAL LAW OF THE UNITED STATES. 

Madison, who was asked by Hamilton for his opinion 
upon this proposal, wrote : " My opinion is that a reser- 
vation of a right to withdraw, if amendment be not 
decided on, under the form of- the constitution, within a 
certain time, is a conditional ratification; that it does not 
make New York a member of the new Union, and, con- 
sequently, that she could not be received on that plan. 
The constitution requires an adoption in toto and forever. 
It has been so adopted by the other states. An adoption 
for a limited time would be as defective as an adoption 
of some of the articles only. In short, any condition 
whatever must vitiate the ratification. The idea of re- 
serving a right to withdraw was started at Eichmond, 
and considered as a conditional ratification, which was 
itself abandoned as worse than a rejection." This letter, 
which expressed in an authoritative way the views of the 
father of the constitution upon the legal nature of the 
federal compact, is of the highest importance in view of 
the war fought for five and seventy years over this fun- 
damental question, — a war the final history of which was 
written in blood. The letter gave the day to the friends 
of the constitution. On July 25, the ratification conven- 
tion, by a majority of five votes, decided for an uncon- 
ditional ratification. After this, it was unanimously 
voted to request the legislatures to call a new convention 
in order to pass upon the amendments proposed. March 
4, 1789, the new federal powers came into existence, 
although North Carolina and Ehode Island had not yet 
adopted the constitution. The legal position which these 
two states occupied in regard to the Union was not 
sharply insisted upon, because their delay could not be of 
any especial importance, and no one doubted that they 
would soon overcome their scruples. North Carolina 



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GENESIS OF THE FEDESAX OONSTITUTIOK. 27 

speedily ratified (November 21, 1789). Little Khode 
Island waited until May 29, 1790, and then decided upon 
acquiescence only by a majority of three votes. 

John Quinoy Adams said in a speech at the fiftieth 
jubilee of the constitution that it was wrung from the 
people through "grinding necessity." This was true. 
Hamilton had written in the Federalist: " The establish- 
ment of a constitution, in time of profound peace, by the 
voluntary consent of a whole people, is a prodigy^ to the 
completion of which I look forward with trembling anx- 
iety." If this miracle now happened, it was due to the 
fact that the hard lessons of daily experience had finally 
given wide circles of the " reluctant people " a glimmer- 
ing knowledge of the great truth that, as he had hitherto 
said: "A nation without a nationabgovernment is, in my 
view, an awful spectacle." Gouverneur Morris had ex- 
plained, in Philadelphia, his approval of the constitution 
by saying that the question was simply: "Shall there be 
a national government or a general anarchy?" In the 
same way Washington had written, December l-i, 1787, 
that the choice lay only between the adoption of the consti- 
tution and anarchy, for, he had added, if another conven- 
tion is tried, its members will be more at odds than in the 
first; they will agree upon no common plan; either this 
constitution must be adopted or the Union dissolved. 
Only the conviction that further experimenting had be- 
come impossible, and that a trial must be made of this 
constitution if the nation was to be rescued from the 
wretched stagnation of all interests under the articles of 
confederation, wrung the adoption of the constitution 
from political doctrinairism and from particularist self- 
ishness. Moreover, it had been adopted by all of the 
states without the application of any outside force. This 
was the decisive fact for the future, and not the particular 



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ZO CONSTITUTIONAL LAW OF THB UNITED STATES. 

arguments which here and there had carried the day. No 
state could rightly deduce from the history of its develop- 
ment the right to cut loose from it. If the duties and 
the limits of self-government were found to be a heavy 
chain, yet each state had, by a full and free expression of 
its own will, fastened this fetter upon itself; had placed 
itself under the control of this fundamental law; and had 
done so in the most formal way. The Philadelphia con- 
vention had not submitted its work to the legislatures 
for ratification, but had demanded that the legislatures 
should leave the decision to conventions called for this 
particular purpose. In accordance with the recommen- 
dations of congress, this demand had been carried out in 
all the states. The states were not bound to the consti- 
tution through the state governments, but the people, the 
sole source of all political power in a republican govern- 
ment, had ratified the constitution through their represent- 
atives, chosen ad hoc. The United States had therefore 
ceased to be a confederation, and had become in truth a 
Union. The instrument under which they had decided 
henceforth to live, not only was no longer called articles 
of confederation, but it was no longer a confederation com- 
pact. It was a union compact. It was, in the full sense 
of the word, a constitution, a fundamental law of the 
state, a law which could be changed only in the manner 
provided by itself, could be done away with only by gen- 
eral and free consent, and could be overthrown only by 
revolution, but could never, and under no circumstances, 
be nullified by one or more states.' 

§ 6. The Fifteen Amendments. The friends of the 
constitution had believed that they must stand firm in 
their demand for its unconditional adoption, but they had 
not thereby committed themselves to the view that the 

1 Texae w. White, Wallace, VII., 726. 



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GENESIS OF THE FEDERAL CONSTITUTION. 29 

work of the Philadelphia convention could not be im- 
proved. As soon as the constitution had come into eiBfect, 
this question began to be discussed. It was brought to 
an issue in the manner provided by the constitution. The 
friends of the constitution would, of course, have been 
slow to consent to material changes as long as its provis- 
ions had not been subjected to the only suflBcient proof, 
that of experience. Criticism, however, was not at first 
directed against what it provided, but against what it 
either did not provide, or. in the opinion of the opposi- 
tion, left doubtful. They proposed for the most part not 
changes but additions, and the victors consented to this 
the more willingly, since from the beginning they had 
sought to weaken the opposition by the assertion that 
everything which they wished to see expressly set forth 
was implied in the silence of the constitution on the ques- 
tions at issue. Ten amendments w^ere proposed by the 
first congress and adopted by the necessary number of 
legislatures. The first eight additional articles take cer- 
tain things out of the legislative control of congress, and 
guarantee to individuals certain rights and the mainte- 
nance of certain forms of law, thought to be sure safe- 
guards against abuse of power and injustice. The ninth 
declares that the enumeration of certain rights is not to 
be construed to deprive the people of others not enumer- 
ated, " retained by " the people. The tenth provides that 
" the powers not delegated to the United States by the 
constitution, nor prohibited by it to the states, are re- 
served to the states respectively, or to the people." On 
account of the fundamental idea from which these ten 
additional articles sprang, they were and are often called 
the American Bill of Eights. This phrase, borrowed 
from well-Tinown events in the history of England dur- 
ing the seventeenth century, and the contents of the 



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30 CONSTITUTIONAL LAW OF THB UNITED STATES. 

first eight articles, clearly show how much the political 
thought of this generation found its point of departure 
in the internal struggles of the mother-land, and how far 
it was still removed from fully recognizing the essential 
diflFerences in the actual conditions of the two countries. 
However, no one in the United States will to-day deny 
that experience has justified those who were not content 
with the legal results to be deduced from the silence of 
the constitution upon the questions at issue, but wished 
express provisions which should give the least possible 
occasion for a controversy. 

The eleventh article, which was recommended by the 
third congress at its second session (1794) to the legisla- 
tures, bears quite a different character. It declares that 
no state can be brought before the federal courts by cit- 
izens of another state, or by subjects of a foreign state. 
This provision, which has given rise to much complaint, 
and has very recently been again vigorously discussed, 
was partly a new manifestation of the spirit which before 
the adoption of the constitution had been the dominant 
one, but was especially due to the feeling that it was de- 
rogatory to the dignity of a state to let itself be dragged 
into court by individuals as a party with the same stand- 
ing before the court as themselves. 

The twelfth article provided a new method of electing 
the president and vice-president. It was proposed at the 
first session of the eighth congress (1803) as a result of 
the discomforts and dangers which in the fourth presi- 
dential election had resulted from the original provisions.^ 

The thirteenth, fourteenth and fifteenth amendments, 
passed respectively at the second session of the thirty- 
eighth congress, the first of the thirty -ninth, and the third 
of the fortieth, were caused by the civil war, and relate 

1 See my Constitutional History of the United States, 1, 168-176. 



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* GENESIS OF THE FEDERAL OONSTITUTION. 31 

to the abolition of slavery, to different questions which 
arose from the reconstruction of the terribly shattered 
Union, and to the enfranchisement of the negroes and 
former slaves.^ 



1 The proclamation issued by W. H. Seward, as secretary of state, 
in pursuance of a law of April 20, ISIS', announcing that the thir- 
teenth amendment had become a part of the constitution, was dated 
December 18, 1865. The seceded states had been notified by congress 
and the president, that the adoption of this amendment was a condi- 
tion precedent to their re-admission into the Union. The reconstruc- 
tion biU was sent to the president just before the close of the session. 
It was not signed by him, but in a proclamation dated July 8, 1864, 
Lincoln declared himself to be in substantial accord with its provis- 
ions. It may be said with considerable confidence that even without 
this compulsion the necessary number of states would have approved 
the amendment, but yet it is not to be questioned that the consent of 
part of the states was obtained imder a certain compulsion. So, 
too, it must be recognized as an anomaly that states which were 
actually at the time neither full members of the Union, nor entitled 
to equal rights under it, voted upon an amendment to the' constitu- 
tion. 

The definitive proclamation about the fourteenth amendment was 
dated July 28, 1868. A proclamation of July 20 had declared the 
amendment adopted if the ratifying resolutions of Ohio and New 
Jersey were to be considered as of full force and eflFect, although 
these states (in January and April respectively) had rescinded these 
resolutions. Congress was not content with the form of this proclar 
mation. It passed a resolution July 21, which declared that the 
amendment had been adopted, and named Ohio and New Jersey 
among the ratifying states. Thereupon Seward issued his second 
proclamation with express reference to the resolution of congress. 
The question whether a Btate has a right to recall its consent as long 
as an amendment has not yet become an actual part of the constitu- 
tion has not yet been fully decided. For judicial decisions "in a 
somewhat analogous case,*' holding that the approval once given re- 
mains binding, see CJooley, The Oeneral Principles of Constitutional 
Law in the United States of America, p. 204. In the fourth edition 
of Story's Commentaries, edited by Cooley, 11., pp. 652, 653, the 
learned judge shows himself decidedly inclined to the opposite opin- 
ion. Oregon's recaU of her approval was evidently of no effect, 



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32 CONSTITUTIONAL LAW OF THB UNITED STATES. 

Other amendments to the constitution have often been 
proposed, but these have failed to receive the necessary 
number of votes, either in congress or among the states. 
Experience has shown that the provisions of the constitu- 
tion about amendments are sufficient on the one hand to 
meet the demands of development, and on the other to 
put so strong a curb upon a restless search after novelty 
that the democratic republic has been more conservative 
in its fundamental law than any state whatever of the 
European continent. 
/ § 6. The Territory of the Union and its Constitu- 
BNT Members. The original boundaries of the territory 
of the Union could not exactly be defined, because the 
provisions about them in the charters of a part of the 
colonies w^ere decidedly vague. Even the treaty of peace 
was not entirely clear on this question. The United 
States have repeatedly been involved in disputes about 
boundaries with England. Part of these disputes were of a 
later origin. All of them, however, have been peaceably 
settled, which is equivalent to saying that the claims of 
the United States have not always been completely 
granted. This was especially so in the compromise which 
brought to an end the controversy of many years over 
the Oregon boundary. They accepted a very small part 
of their original claira.^ But if they could not obtain 
everything which they believed might be claimed as their 
own, or might be got, yet their territory, by purchase, by 
the provisions of treaties of peace and other treaties, and 
by annexation, grew to an amazing extent. While the 

because it did not take place until after, the issue of Seward's procla- 
mation. 

The fifteenth amendment was declared adopted by a proclamation 
of March 80, 1870. 

1 See my ConstUtitiandl History, vol. HE., ohaps. 2, 6, 8 and 13. 



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GENESIS OF THE FEDERAL CONSTITUTION. 33 

thirteen original states, New Hampshire, Massachusetts, 
Rhode Island, Connecticut, New York, New Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North Car- 
olina, South Carolina and Georgia, have within their 
present boundaries only 325,065 square miles, the whole 
territory of the Union, according to the latest figures, 
now contains 3,602,990 square miles. The states which 
have been made out of the lands ceded to the Union by 
the original states, and out of the territory more lately 
acquired, contain 1,761,695 square miles. There are 
twenty-five of them, which have been admitted into the 
Union in the following order :^ Kentucky, February 4, 
1791 (June 1, 1792); Vermont, February 18, 1791 (March 
4, 1791); Tennessee, June 1, 1796; Ohio, April 30, 1802 
(November 29, 1802); Louisiana, April 8, 1812 (April 50, 
1812); Indiana, December 11, 1816; Mississippi, Decem- 
ber 10, 1817; Illinois, December 3, 1818; Alabama, De- 
cember 14, 1819; Maine, March 3, 1820 (March 15, 1820); 
Missouri, March 2, 1821 (August 10, 1821); Arkansas, 
June 15, 1836; Michigan, January 26, 1837; Florida, 
March 3, 1845; Iowa, March 3, 1845 (December 28, 1846); 
Texas (resolutions of annexation were passed March 1, 
1845), December 29, 1845 ; Wisconsin, March 3, 1847 (May 
29, 1848); California, September 9, 1850; Minnesota, May 
4, 1858 (May 11, 1858); Oregon, February 14, 1859; Kan- 
sas, January 29, 1861; West Virginia, December 31, 1862 
(June 19, 1863); Nevada, March 21, 1864 (October 31, 
1864); Nebraska, February 9, 1867 (March 1, 1867); Col- 
orado, March 3, 1875 (August 1, 1876). The Union, 
therefore, consists, at the present time (1886), of thirty- 
eight states, with an area of 2,086,760 square miles. The 
remainder of the national territory contains nine organized 

1 1 gire the date of the act of admission, and, if the actual entry 
into the Union took place later, I give that date also in parenthesis. 
8 



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84 OONSTITUnONAL LAW OF THE UNITED STATISS. 

territories, the Indian Territory, which has no territorial 
government, and the District of Columbia, the seat of 
the federal government. The territories were organized 
in the following order: New Mexico and Utah, Septem- 
ber 9, 1850; Washington, March 2, 1853; Dakota, March 
2, 1861; Arizonaj February 24, 1863; Idaho, March 3, 
1863; MonUna, May 26, 1864; Wyoming, July 25, 1868; 
(Alaska, July 27, 1868).^ The population of the United 
States, according to the census of 1790, was 3,929,827 
souls. According to that of 1880 it was 50,155,783.* 
Alaska and the Indian Territory are not included. The 

1 Organized not as a territory but as a coUection district. The ob- 
ject of the law, according to its title, is '' to extend the laws of the 
United States relating to customs, commerce and navigation" over 
Alaska. Statutes at Large, XV., 240. 

3 Since, in the part of this work devoted to the constitutional law 
of the single states, they cannot be aU separately treated, it seems 
proper to give here their area and population according to the census 

of 1880: 

Area in Popuki' 
Square Miles, ttcm, 

NewHampshire 9,805 84«,991 

Massachusetts 8,815 1,783,0^ 

Rhodelsland 1,250 276,531 

Connecticut 4,990 622,700 

New York 49,170 6,082,871 

New Jersey 7,815 1,181,116 

Pennsylvania 45,215 4,282,891 

Delaware 2,050 146,608 

Maryland 12,210 934,943 

Virginia. 42,450 1,612,565 

North Carolina 52,250 1,399,750 

South Carolina 80,570 905,577 

Georgia 59,475 1,642,180 

Kentucky 40,400 1,648.690 

Vermont 9,565 332,286 

Tennessee 42,050 1,543,359 

Ohio 41,060 3,198,162 

Louisiana 48,720 989,946 

Indiana 36,350 1,978,301 

Mississippi 46,810 1,131,597 

lUinois 66,650 8,077,871 

Alabama 52,250 1,262,605 

Maine 88,040 648,936 

Missouri 69,416 2,168,380 



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GEKESIS OF THE FEDEBAL OOKSTITUTION. 35 

view almost universally accepted by the founders of the 
republic, that the federal principle could last only as long 
as the federal state did not grow beyond certain bounds, 
has therefore been overthrown by experience. But with- 
out doubt this is mainly, if not exclusively, on account of 
the many-sided changes which the life of civilized people 
has undergone, through the development in modem 
times of means of communication. No one now doubts 
that the Union to-day is far stronger than if it counted 
only thirteen states, and that it grows stronger with each 
passing year. 

Area in Populd- 
Square Miles, twn. 

Arkansas 58,850 802,525 

Michigan 58,915 1,686,987 

Florida. 58,680 269,498 

Iowa 56,025 1,624,615 

Texas 265,780 1,591,749 

Wisconsin 56,040 1,315,497 

California 158,860 864,694 

Minnesota 83,865 780,773 

Oregon 96,030 174,768 

Kansas 82,080 996,096 

West Virginia 24,780 618,457 

Nevada 110,700 62,266 

Nebraska. 76,855 452,402 

CJolorado 103,925 194,327 

Territories, 

New Mexico 122,580 10,844 

Utah 84,970 148,963 

Washington 69,180 75,116 

Dakota. 149,100 135,177 

Arizona 113,020 5,280 

Idaho 84,800 32,610 

Montana 146,080 89,159 

Wyoming 64,690 20,789 

According to race, the population is divided into 48,402,970 whites, 
6,580,798 negroes, 105,607 Chinese, and 66,407 Indians, ezclusiye of 
the wild tribes, and of the Indian population in the Indian Territory 
and in Alnnlrft. About one-eighth of the population (6,679,978) are of 
foreign birth* 



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PART SECOND. 

THE FEDERAL CONSTITUTIOK 

Authorities. U. 8. Supreme Court Reports (Dallas, 4 toIs. to 
1804; Granch, 8 voIb. to 1815; Wheaton, 18 yoIs. to 1827; Peters, 16 
Tols. to 1843; Howard, 24 vols, to 1800; Black, 2 vols, to 1862; Wal- 
lace, 22 vols, to 1874 ; Otto, 17 vols, to 1882 ; sinee then, Davis. Otto's 
reports are usually cited in American books, not by his name, but as 
"U. S. Reports," — the general name for the series of supreme ooort 
dedsions. I shall follow this example. In my Constitutional His- 
tory of the United States I have hitherto taken my references from 
Curtis's edition of the supreme court reports, so far as that goes. In 
1882 the Lawyers Co-operative Publishing Company (Rochester, N. 
T.) began, under the editorship of Stephen R. Williams, an edition 
which is more complete, more convenient, and in many respects more 
valuable. Up to April, 1885, 22 volumes appeared, coming down to 
the October term, 1884). U. S, Statutes at Large. (The student 
cannot dispense with them, although the Revised Statutes, 1875; 2d 
edition, 1878; Supplement, 1874-81, are more convenient, lighten 
the task of research by their topical arrangement, and derive an 
especial value from their references to the decisions of the supreme 
court. They contain only the laws at present in force.) U, 8. Digest, 
B. V. Abbott, 15 vols., Boston, 1874-78; New Series, 9 vols., 1870-78; 
10 vols, by J. E. Hudson and G. F. Williams, continuation by Will- 
iams alone. A. C, Freeman, Digest of American Decisions, voL I, 
San Francisco, 1882. Opinions of the Attomeys-Chneral, The steno- 
graphic reports of the proceedings in congress, which have appeared 
under different titles. The Debates and Proceedings in the Congress 
of the United States come down to the conclusion of the first session 
of the twenty-fifth congress (October 6, 1887), 28 vols., Wash., 1825- 
1887. The Congressional Olobe begins in 1888 and extends to 1873. 
The Congressional Record covers the time since. Some of the offi- 
cial publications of the government, usually referred to as a whole 
as Congressional Documents, are an important source of information. 
Among these, the Reports of Committees are of especial value, and 
that, too, for constitutional history. Since both the inferior federal 
courts and the state courts have to pass upon the constitutionality of 
federal and state laws, and all the disputed questions of constitu- 



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THE FEDERAL CONSTITUTION. 87 

tional law cannot possibly be brought before the supreme court for 
adjudication, the decisions of these other courts often carry great 
weight. But the enormous number of these decisions makes an ex- 
haustive review of them more and more of an impossibility, even to 
the most learned American jurists. 

J. Wilson, Works, 8 vols., Phila., 1804. J. Taylor, Construction 
Ccmstrued and Constitutions Vindicated, 1820. Ibid,, New Views of 
the Constitution of the United States, 1823. R. Mohl, Das Bundea- 
stcLatsrecht der Vereinigten Stouten von Nord'Amerika, Stuttg. and 
Tab., 1824. J. Kent, Commentaries on American Law, 1st ed., 1826; 
12th ed., 1873; 4 vols. Eawle, A View of the Constitution of the 
United States of America, 2d ed., Phila., 1829. Th. Sergeant, Con- 
stitutional Law, being a Review of the Practice and Jurisdiction of 
the Courts of the United States and of Constitutional Points De- 
cided, 2d ed., Phila., 1830. J. Stoiy, Commentaries on the Constitu- 
tion of the United States, 2 vols., 1st ed., 1833; 4th ed., 1878. A. P. 
Upshur, The Federal Oovemment, its true Nature and Character, 
being a Review of Judge Story's Commentaries on the Constitution 
of the United States, Petersburg, 1840. A. de Tooqueville, De la 
DStnocratie avx Etdts-Unis, 2 vols., Paris, 1885. 

FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION AND 
OF CONSTITUTIONAL LAW. 

§ 7. The So-called Preamble. At the beginning of 
the constitution is the following sentence: "We, the 
people of the United States, in order to form a more per- 
fect union, establish justice, insure domestic tranquillity, 
provide for the common defense, promote the general 
welfare, and secure the blessings of liberty to ourselves 
and our posterity, do ordain and establish this constitu- 
tion for the United States of America." This sentence is 
ordinarily called the Preamble, a title which Farrar 
(pp. 85-89) rejects, because it must lead to entirely erro- 
neous conclusions about its legal nature and scope. Far- 
rar is right, because this is a technical expression, taken 
from English law;^ and this expression does not cover 

1 Sedgwidc, pp. 43-46. 



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88 OONSTITDTIONAL LAW OF THE UNITED STATES. 

the essential part of this introductory sentence of the 
constitution. It not only speaks, like a preamble, of the 
motives and aims of the law-giver, but it names the au- 
thority which here expresses its will; and it declares 
what this expression of will is, and upon whom it is to be 
binding. It is evident that this is not simply an outward 
and purely formal diflferenoe, but one of great material 
significance. This appears from a comparison of the 
introductory sentences of the articles of confederation 
with this; from the numerous changes which it had to 
undergo before it received its final form in the Philadel- 
phia convention; ^ and from the long and earnest debates 
which it caused in some of the ratification conventions. 
It was almost universally recognized that the enumera- 
tion of certain objects did not make this clause an inde- 
pendent source of power to the federal authorities. 
Nevertheless, it did not by any means follow that no 
weight at all was to be given it because no legal conse- 
quences could be deduced from it. It had owt " simply 
an historical significance," and the constitution did not 
" first begin with that which followed the preamble," * but 
it is, in the proper sense of the word, a most essential part 
of the constitution itself, for it is to it what the enacting 
clause is to an ordinary law. The discussion of the aims 
enumerated in it, to which the American commentators 
for the most part devote much space, is unnecessary in a 
statement of existing constitutional law, because it is of a 
political rather than a legal nature. But the other parts 
of the preamble demand careful attention and would de- 
serve it even if no independent legal significance were to 
be given to them, because they provide the natural start- 



iOollected by Farrar, pp. 8a-88. 
sSohUef. D.71. 



sSohUef,p.71 



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THE FEDBBAL OONSTmiTION. 89 

ing point for a discussion of the principles which to a cer- 
tain extent form the foundation of the whole constitution, 
as well as of the rules which control its interpretation and 
construction. The " people of the United States " name 
themselves as the framers of the constitution, that is, as 
the possessors of political omnipotence, of sovereignty. 
But who, then, are the people of the United States? This 
question was the formal beginning of the struggle between 
two political schools which culminated in the civil war, 
and is still carried on to-day with tongue and pen, though 
in a far milder way. 

§ 8. The DocrBrNB or State Sovereignty. The 
premise of the argument of the so called state's-rights 
school is that there never has been, either in point of fact 
or in point of law, one people of the United States. The 
argument proceeds as follows. The people of each state, 
without being bound in any way by the action or the 
non-action of the other states, decided for themselves, 
through their authorized representatives, whether or not 
they would accept the draft of the Philadelphia conven- 
tion. That the constitution is a work of states is there- 
fore a fact which cannot be gotten rid of on the plea that 
the constitution begins with the words : " We, the people 
of the United States." If these words do not contain an 
evident falsehood, then must the phrase " United States " 
be read here as " states united ; " but so read they say 
simply that the states, in order to better protect their 
interests, have entered into a new compact to regulate 
everything in regard to those matters as to which they 
wish to form one commonwealth. The political existence 
of the Union was not changed. The states were sovereign 
afterwards as well as before, and they alone were sover- 
eign because a partition of sovereignty is impossible from 
its very meaning. It would be to turn nature upside 



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40 OONSTITUnONAL LAW OF THE UNITED 8TATES- 

down if the creator were made subordinate to the 
creature. There was no common judge standing above 
the federal powers and the states. If a conflict of author- 
ity broke out between them, the decisive judgment was 
left to the states, that is, to each of them for itself, as to 
what rights they had reserved for themselves and what 
powers they had given to the Union. If the federal 
government, in the opinion of a single state, exceeded its 
constitutional authority, that state was justified in declar- 
ing the particular law, so far as it came in question, to be 
null and void. John C. Calhoun,^ of South Carolina, 
who with great logical acuteness developed into a com- 
plete system this so-called doctrine of nullification, de- 
clared that nullification was an " eminently conservative 
remedy," and affirmed that it, and it alone, could prevent 
the dissolution of the Union.^ The younger school of the 
southern state's-rights men did not stand by him in this. 
The doctrine of nullification was constantly pushed into 
the background and often completely rejected, and on the 

1 See my book about him in the series of biographies edited by- 
John T. Morse, under the general name of "American Statesmen.'* 

>The doctrine in its beginnings goes back to the last years of the 
eighteenth century. The hated alien and sedition laws, whose 
imconstitutionality wUl scarcely be questioned by anyone to-day, 
gave the legislatures of Virginia and Kentucky the opportunity to 
proclaim the doctrine officially. When the anti-federalists in 1801 
obtained the mastery, and the policy of the United States in the 
struggle with ESngland seriously embarrassed the industrial interests, 
especiaUy those of the New England states, the parties changed their 
standpoints. The federalists were now champions of state's rights. 
During the war with England they inserted in their political mani- 
festoes the leading clauses of the Virginia and Kentucky resolutions, 
word for word. But it was under the pressure of the special inter- 
ests of the slave-holders that the doctrine of state sovereignty was 
first fully framed, thought out to a logical end, and finally, with the 
most terrible zeal, transferred from theory to practice. 



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THE FEDEKAL OONSTITUTION. 4:1 

other hand, again and again and more unconditionally 
the last consequences were deduced from the premises of 
the stateVrights school. Since the constitution is a com- 
pact between sovereign states, they said, the states have 
the power to cut loose from the Union if the compact is 
broken, either by the national government or by the 
other states, — if it changes from a means of protection 
and of advancement into a source of destruction and 
certain ruin. Sovereignty is not only indivisible, but 
cannot be parted with, and the states, bound only through 
an act of their own free will, can be bound only as long 
as their will does not change; that is, as they wish to be 
bound. Secession is thus not a right under the constitu- 
tion, that is, a constitutional right, but it is inherent in 
the nature of the states, and therefore could not possibly 
be given up by the adoption of the constitution. The 
attempt to prevent by force the secession of a state is not 
a suppression of a rebellion, but an international war. 
Others did not go as far, and thought they had found a 
middle course. They admitted that secession was a revo- 
lutionary act, but affirmed that the federal government 
was not empowered to use force against the sovereign 
states. This was the non-coercion theory. They claimed 
that the sovereign states had the right of neutrality ; that 
is, that although they had not cut loose from the Union, 
they were justified in standing on one side as spectators 
during a conflict fought out with the sword between the 
federal government and the seceded states. 

The result of the civil war made this one of the dead 
and gone doctrines of history. After its champions had 
appealed to the uUima ratio and had been completely 
conquered, it had no more political vitality. And it will 
never again have it. The victorious north did not even 
consider it necessary to guard itself against the possibil- 






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42 CONSTITUTIONAL LAW OF THE UNITED STATES. 

ity of the revival of this doctrine by inserting in the 
constitution a new express declaration against it. The 
opposite doctrine is thus unquestionably valid constitu- 
tional law to-day, whatever one may think on the ques- 
tion as to what originaUy was constitutional law. There 
is no need here of any further critical examination of the 
doctrine of state sovereignty. This is involved in the 
statement of the opposite doctrine, which is the constitu- 
tional law of to-day. 

§ 9. The People of the TJNrrED States of course did 
not act as one uniform whole when they gave themselves 
this constitution. The people, that is, the part of the 
population of each state endowed with full political 
rights, acted for themselves, and had absolute freedom of 
decision. They could accept the draft of the Philadel- 
phia convention through their authorized representatives, 
or they could reject it, and therewith cut loose from the 
Union, if the projected organization of the latter were 
accomplished. But their ratification did not make the 
draft a constitution. Their ratification was simply a 
declaration, binding in law, that if the people of at least 
eight other states came to the same conclusion, the organ- 
ization of the Union should therewith become an accom- 
plished fact ; so that, for the states concerned, this draft 
should be good as a constitution given by the people of 
the United States to the United States. Only by and 
through the choice of its own people did each state be- 
come a constituent member of the Union. This, how- 
ever, did not happen through an act of will of any single 
state, but the Philadelphia draft first became a constitu- 
tion by the equal and co-operating consent of the people 
of nine states, and the states which ratified it afterwards 
evidently acquired by their ratification exactly the same 
legal status in the Union. Chief -justice Chase was un- 



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THE FEDERAL CONSTITUTION. 43 

questionably right when he said that " the Union of the 
states never was a purely artificial and arbitrary relation." * 
This fact, however, did not settle the matter at issue. 
Whether the states were or were not .sovereign from the 
time of the declaration of independence, by common 
consent every one of them decided as a sovereign upon 
the adoption of the constitution, that is, upon its own 
entrance into the Union. On the other hand, whatever 
their legal st<ittcs in the confederation and their political 
nature up to this time might fiave been, they were not 
sovereign by cominon consent, that is, according to the 
constitution, as members of the new Union. The Phila- 
delphia convention began its labor by the adoption of a 
resolution which declared " that a national government 
ought to be established, consisting of a supreme legisla- 
tive, execiytive and judiciary." If a state adopted the 
draft, its people thereby declared that they, as far and as 
widely as this draft provided, should be fused with the 
people of the other states into one people of the United 
States; and by the concurrent decision of all, this decla- 
ration, put in this way, was placed at the beginning of 
the constitution, so that this proclaimed itself as the 
work of this one people of the United States. 

§ 10. The Constitution is not a compact between the 
states, but it is, as it declares itself to be, a constitution, 
and in truth, the constitution of the United States, that 
is, of the Union, of the commonwealth formed out of the 
states. Therefore, it is unconditionally binding, as well 
for the whole people as for the states as such. No room 
for doubt is left, for the second section of the sixth ar- 
ticle reads : " This constitution, and the laws of the United 
States which shall be made in pursuance thereof, and all 

1 I^exas tw. White, Wallace, Vn., 734. 



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4A CONSTITUTIONAL LAW OP THE UNITBD STATES. 

treaties made or which shall be made under the authority 
of the United States, shall be the supreme law of the 
land, and the judges in every state shall be bound thereby, 
anything in the constitution or laws of any state to the 
contrary notwithstanding." The constitution is thus the 
law, and, moreover, the supreme law of the land. The 
constitutions of the separate states are their fundamental 
laws only in regard to those matters which are not sub- 
mitted by the federal constitution to federal authority. 
This provision makes the constitution an integral part of 
the constitution of each state.^ If there is a conflict be- 
tween them, then the provision of the state constitution 
opposed to the federal constitution is ipso facto null and 
void. All judges, and therefore, evidently, all other state 
officers, and all citizens of the state, are absolutely bound 
down to this fundamental principle. He who seeks to 
overthrow it lays hands on the fundamental law of the 
land. The federal government, which is bound to give 
the constitution life and being by law, is therefore not 
only empowered but directed to break down any opposi- 
tion ; — if possible, by the ordinary and peaceful powers of 
the state as provided by the constitution, but in case of 
need, by force. 

§ 11. The Right and the Duty of TJsiNa Force follow 
directly from the ideas of "law" and "government.** 
They are, moreover, set forth in the constitution in a way 
quite beyond doubt. The third section of the second 
article provides that the president " shall take care that the 
laws be faithfully executed." The constitution is the su- 
preme law of the land, and the president's highest duty 
is therefore to take care that it shall be executed every- 
where and under all circumstances. It provides in the 

1 Taylor vs. Taintor, Wallace, XVI., 866, 



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THE FEDERAL OONSTTTUTION. 45 

seventh paragraph of the first section of the second arti- 
cle that he shall, upon entering office, take the following 
oath: "I do solemnly swear (or affirm) that I will faith- 
fully execute the office of president of the United States, 
and will, to the best of my ability, preserve, protect and 
defend the constitution of the United States." If the 
constitution laid upon him this duty, it must also have in- 
tended that he should have, or should be able to obtain, 
the means by which to fulfill the duty in all cases. 
Whether and how far it is his privilege to decide for him- 
self whether the application of force is necessary in a 
given case, and actually to use force, need not be discussed 
at this point, where only questions of general principles 
are at issue. Here it is sufficient to show that if, ^d so 
far as, he is not authorized to do this, the law-making 
power is. Article I., section 8, paragraph 18, says that 
congress shall have power " to make all laws which shall ^ 
be necessary and proper for carrying into execution the 
foregoing powers and all other powers vested by this con- 
stitution in the government of the United States, or in 
any department or officer thereof." It is the president's 
duty, and therefore also within his power, to preserve, 
protect and defend the constitution, and congress is 
therefore bound to give him the means to use this power, 
that is, to come up to this duty. In case that not only 
individuals but states as such should rebel against the 
laws or the constitution, the right of the federal govern- 
ment to use force can be in no way questioned; and if 
other means are not sufficient, it is so much the more 
bound to use force because the political order, or the very 
existence of the Union is endangered in so much higher a 
degree. If the federal government seeks by force to com- 
mand obedience to the laws and the constitution, and the 
opposition becomes in substance and form a war, this war 



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46 CONSTITDTIONAL LAW OF THE UNITED STATES- 

may be conducted for the sake of humanity and policy as 
a war with a foreign power under all the rules of inter- 
national law, but legally the government has to do only 
with a rebellion.^ 

§ 12. The Secession of a State is simply a fact, not a 
legal proceeding. As long as the people of the United 
States, whose work the constitution is, did not themselves 
decide to destroy this work, that is, the Union, — in other 
words, as long as they wished to continue to be one peo- 
ple, — the constitution of the Union, despite any fact 
whatever, remained from the standpoint of law wholly 
unchanged.^ On questions of this sort, single states have 
as little right of action as single individuals. An ordi- 
nance of secession is wholly null and void. Despite it, the 
state femains a member of the Union and its citizens re- 
main citizens of the Union. Its and their duties under 

1 In the Prize Cases (Black, XL, 685), the supreme court says that 
the rebels were at the same time a war-making power and traitors, 
and were therefore subject to the consequences to be deduced from 
either the one or the other character. The United States, on the other 
hand, bore the double character of a war-making power and of the 
sovereign, and had therefore the rights of both. 

It seems to me strange to refer the right to suppress a rebellion to 
the right to declare war, as the supreme court does in Texas vs. White 
(Wallace, VU., 700). The Philadelphia convention certainly had no 
thought of civil war when it gave this right to congress. I think, 
therefore, that it is at least an unfortunate formulization of the idea 
I have already recognized as just, when the supreme court declares 
in the Prize Cases just quoted that congress alone has the right to 
declare war. In the case of a civil war, according to my judgment, 
formed from the standpoint of constitutional law, the lawful govern- 
ment has nothing whatever Mo do with declaring war. A war is a fact 
which has simply to be recognized. If congress merely recognizes 
the fact, the views expressed in the text and by the supreme court 
come into harmony. 

3 These fundamental prindplee are clearly and sharply formulated 
in Cohens vs, Virginiay Wheaton, VL, 364. 



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THB FEDERAL OONSTITDTION. 47 

the constitution continue wholly unaltered.^ No new act 
of admission is necessary, therefore, in order to allow a 
state which has been in rebellion to enter again into the 
full enjoyment of its constitutional rights. It is again an 
equal member of the Union when it has been recognized 
as such by the political powers of the Union, and its 
representatives and senators have been admitted by con- 



§ 13. Eeoonstruotion. It was thus not a legal, but a 
political question, how the so-caUed reconstruction was to 
be accomplished. The courts had to decide, upon a given 
case, what the political powers of the federal government 
had determined in regard to that case, and had to base 
their judgment upon this determination; but it did not 
appertain to them to decide, in addition to this, what 
these political powers ought to have decided. 

These remarks have by no means exhausted the conse- 
quences which are to be deduced from the opening sen- 
tence of the constitution. It is only when this sentence 
is analyzed from exactly the opposite standpoint that its 
full influence upon the political nature of the Union is 
first recognized. 

§ 14. The United States. The people of the United 
States name themselves as the possessors of sovereignty, 
and act throughout as such; so that they give to the 
United States the constitution. The people of the United 
States, however, is not exactly the same thing as the 
population of the North American republic. As the 
Union has never been a purely arbitrary and theoretical 
creation, so also the name United States is no arbitrary 
and casual phrase, but is due to the political facts of the 

1 White V8, Cannon, Wallace, VI., 448 ; White vs. Hart, Ibid., Xm., 
646. 
« T^exas vs. TF^tYe, Wallace, Vn., 700. , 



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48 CONSTITUTIONAL LAW OF THE UNITED STATES. 

Union. The United States is not only the name of a 
thing, but the thing itself. As the population of the 
Union, in giving itself a constitution, acted not as one 
simple whole but in and through its organization into 
states, an organization historic and existing by law, so it 
did not by the constitution organize or wish to organize 
a close national state. It changed the federation of 
states, a federation with the loosest powers, into a federal 
state, upon a deep-laid, national foundation. Out of the 
federation there came an actual Union, but the Union 
was not divided into provinces, which were still called 
states. Its constituent members were actually states and 
must always remain states. It was a mistaken use of the 
word "sovereign" (because it led to conclusions false 
from the standpoint of fact), if afterwards, as before, 
even in oflBcial utterances, men spoke of "sovereign" 
states ; but the states had their own sphere of authority, 
and within this they were completely independent of the 
national government. The expression "people of the 
United States," it has been well said, does not on account 
of this become a shadow, without legal existence or in- 
comprehensible. The possibility of misusing the word 
"people" in a demagogic way always remains, and this 
possibility will always be made use of from time to time; 
but if one has an honest wish to receive and understand 
the word in its constitutional sense, then there is less 
room for doubts than there would be if the Union were a 
single state.^ The " people of the United States " are the 

1 Schlief (p. 10) aflSrmB that even the mob can identify itself with 
this " we, the people of the United States." This is not to be ques- 
tioned, but the constitution cannot be made answerable therefor. 
In his view the introductory words are " evidently an imitation of 
the introductory formula commonly used up to the present day in 
the constitutional monarchies of Europe in passing a law : ' We, king^ 
by the grace of Qod/*' — an assertion which is irreconcilable with 



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THE FEDERAL OOKSTTTUTIOK. 49 

population of the United States, in the organization 
given them by the constitution and precisely fixed by it.^ 
A condition precedent of this organization is the main- 
tenance of their division into self-governing states. The 
states first came into existence with the Union and by 
means of it, but they are older than the constitution, and 
did not abandon their separate political existence by the 
adoption of the constitution, even if this gave them an 
essentially different character. If the states had no ex- 
istence, from the standpoint of constitutional law, outside 
of the Union and independent of it, yet, on the other 
hand, the Union, from the same standpoint, had just as 
little an existence without the states. The supreme court 
says that ^' the constitution in all its provisions looks to an 
indestructible Union composed of indestructible states." ' 
The same authority declares in Cohens vs. Virginia: 
" America has chosen to be in many respects and in re- 
even a superficial knowledge of the history of the development of the 
constitution. A constitution cannot be " criticaUy developed from 
one underlying thought ^ (p. 6) if it is to be anything more than a 
worthless product of a doctrine of abstract logia It is to be under- 
stood only from the historic standpoint. Schlief, for the most part, 
does not state, as he promises to do, what " the actual constitutional 
law of the Union " is. Instead of this he states what, in his opinion, 
the constitutional law should be, frequently what it should not be, 
and only what it is in accordance with his erroneous view. 

1 Story is therefore unquestionably wrong when he says (L, 249) 
that a majority of the whole people can unquestionably change the 
constitution at wiU. For in this case *' people" seems to be used as 
synonymous with " population." Judge Jameson {The Constitutional 
Convention, pp. 19, 20) neatly sums up the whole constitutional doc- 
trine in the sentence: '* Sovereignty resides in the society or body 
politic ; in the corporate unit resulting from the organization of many 
into one, and not in the individuals constituting such unit, nor in 
any number of them, except as organized into a body politic and 
acting as such." See also in the same work pp. 624-528. 

« Texas vs. White. 
4 



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60 CONSTITUTIONAL LAW OF THB UNITED STATES. 

gard to many purposes a nation, and for all these pur- 
poses her government is complete." The court proceeds 
to explain, however, that America wished to be a nation 
only in certain respects and for certain aims, and in re- 
gard to all others the federal government is without any 
authority whatever; it is as little sovereign as the states. 
§ 15. Sovereignty, which in fact is indivisible, rests 
only in the people of the United States. The people have 
intrusted the federal government with the use of certain 
rights, while others, according to their will, as fixed in 
the constitution, remain in the states, — others, but not all 
othera. The ninth amendment reads: "The enumera- 
tion in the constitution of certain rights shall not be 
construed to deny or disparage others retained by the 
people." This article is in direct connection with the 
preceding amendments which, as has been said, are ordi- 
narily called the American Bill of Rights. Speaking 
generally, it rests upon the fundamental view that certain 
rights (among them those expressly named) belong to the 
people, i. e.j in this case to the individual citizens, and that 
these rights are to be completely withdrawn from the 
cognizance of the political powers.* On this point the 

• 1 While, by the first amendment, certain things were expressly with- 
drawn from the legislatiye authority of congress, congress is not named 
in the seven following amendments. Yet it has always been held 
by tlie courts that they relate only to the federal government and not 
to the state governments. But if the states, so far as the federal 
constitution is concerned, are in law perfectly free to act in regard to 
the matters to which the first eight amendments relate, yet the rea- 
son for these amendments was as a matter of fact the unanimous 
conviction of the population of all the states that these barriers must 
be erected against every government, if freedom was to be ensured. 
It is only in regard to some of the least important provisions that 
this is either untrue or true only in a limited degree. Farrar 
(pp. 59, 60) affirms that these rights are " held by every member of 
the nation, imder and by virtue of the constitution of the United 



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THE FEDERAL OONBHTUTION. ^ 51 

tenth amendment is conclusive. It says: "The pow- 
ers not delegated to the United States by the constitu- 
tion, nor prohibited by it to the states, are reserved 
to the states respectively or to the people."^ We are 
considering this tenth amendment here only in regard 
to the matter immediately before us. It is evident that 
among the rights which are neither given to the federal 
government nor reserved to the separate states is the 
weightiest of all ; yes, the one which embraces all others, 
t. ^., the right to change the constitution and to parti- 
tion power in whatever way is desired, between the fed- 
eral government and the states.^ The sovereign people 

States, independent of any other earthly power, and, of course, can- 
not be destroyed or abridged by the laws of any particular state." 
There are numberless judicial decisions against this view, but, never- 
theless, a state law which forbade the open carrying of arms has 
been declared unconstitutional. 

1 Cooley, Principles, 29, says that whatever is not granted to the 
federal government belongs to the states, or to the people thereof. 
The expression " people" in the tenth amendment is generally un- 
derstood in this way. In maintenance of this view, it is ordinarily 
said that here the phrase is used that powers are ** reserved to '* the 
states and the people, while the ninth amendment speaks of powers 
" retained by *' the people. I do not overlook the weight of this 
reasoning, but yet cannot persuade myself that here only the people 
of the separate states are meant. According to the context, cer- 
tainly another meaning is possible, and the great care with which 
the constitution has been drawn throughout suffices to show that 
the ** thereof '* which would have excluded every doubt would have 
been added if only the people of the separate states had been 
spoken of. Be this as it may, the views expressed in the text would 
not be influenced thereby, because they need not be made dependent 
upon the tenth amendment. Jameson (p. 86) is of the opinion that 
this amendment relates ''not to the people of the states but to the 
people of the Union.'* 

< As long as the political nature of the United States is not subr 
jected to a change which, in the essential sense of the word, is mate- 
rial, this can happen only by increasing, diminishing, or in some way 



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52 CONSTITUTIONAL LA.W OF THE UNITED STATES. 

thus did not, in adopting the constitution, leave the 
stag^, but they can at any instant use again, to the 
fullest extent, their sovereignty. But even so, only 
the sovereign people of the United States can do this. 
The population of the Union cannot. The least, as 
well .as the most incisive and comprehensive, change 
can lawfully be made only in the way provided in the 
constitution, because the sovereign people has decided 
that it will make changes of the constitution only in 
these fixed w^ays. Naturally, it can change this decision 
as well as all others in a constitutional way.^ In the 
United States, therefore, sovereignty is actually, as the 
idea demands, unlimited and undivided, but the exercise 
of the rights of sovereignty is given to the organs of the 
commonwealth only in part. 

fashioning differently the powers of the federal government. The 
supreme c5om-t says, in Sturgis vs, Crowninshield, Wheaton, IV., 122, 
that there was no reason for setting forth in the constitution the 
powers which remained in the states, and it would have been im- 
proper to do so, because these had their origin, not in the American 
people, but in the people of the separate states, and were no further 
affected by the adoption of the constitution than was involved by the 
provisions of the constitution. The constitution not only withdraws 
from the states certain rights in order to give them to the federal 
government, but it also forbids them to do certain things without 
authorizing the federal government to do them. But while it says 
what the federal government ctm and cannot do, it can only say what 
the states cannot do ; and it expressly sets forth that certain rights 
are reserved to them. So far as their relations to the Union do not 
come into question, it cannot, however, direct them to do anything 
whatever. We shaU discuss later whether and how far powers were 
taken from the states in order to give them to the federal govern- 
ment. 

1 Only on one point can it be doubtful whether a constitutional 
change can be made without the consent of aU 'the states. Article 
v., which relates to the amendment of the constitution, provides 
'* that no state, without its consent, shaU be deprived of its equal suf- 
frage in the senate." If a change in the constitution on this point 



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THB FEDEBAL CONfiTimTIOK. 53 

§ 16. The Authority op the Federal Government 
AND OP the States. The authority of the federal govern- 
ment, as well as of the states, is a limited one, and the 
boundary between the two is set forth in the constitu- 
tion. From the " nature of the state,'' from the " reason 
of the state," from "public opinion," from political 
policy, and even from necessity, the federal government 
can deduce no powers whatever.' It has no inherent 
rights whatever. All its powers are delegated, and it 
has only the powers which are given it by the constitu- 
tion. It is by no means necessary, however, that the del- 
egation should be expressed in bo many words. The 
provision of the articles of confederation on this point 
contains the word "expressly," and when the tenth 
amendment was discussed in congress, it was moved to 
incorporate this word in the constitution. Madison and 
others opposed it on the ground that general expressions 
must be used in the constitution, if it was not to descend 
into the most minute particulars. A stiff and literal in- 
terpretation of these clauses is not to be given, for the 
constitution was framed, not for the moment, and not in 
relation to one fixed state of facts, but with the idea of its 

should be determined upon by a constitutional majority, and a state 
which did not consent should thereby be deprived of its equal repre- 
sentation in the senate, the danger against which the states were to 
be absolutely assured would be brought about in an indirect way. 

1 The supreme court says that the constitution ''is a law for rulers 
and people, equally in war and in peace, and covers with the shield 
of its protection aU classes of men, at all times, and under aU cir- 
cnmstanoes.** The doctrine that it can be thrust on one side in order 
to meet the pressing necessities of a great crisis has the most destruc- 
tive consequences. It "leads directly to anarchy or despotism, but 
the theory of necessity on which it is based is false ; for the govern- 
ment, within the constitution, has all the powers granted to it which 
are necessary to preserve its existence." Ex parte MiUigan, WaUace, 
IV., 120, 121. 



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54 CONSTITUTIONAL LAW OF THE UNITED 81 ATE8. 

lasting for generations and meeting the demands of con- 
stantly changing conditions of affairs. Every power, there- 
fore, of such a general character must include also all the 
powers which are naturally implied in it and are required 
for the attainment of the end sought by it (implied pow" 
ers).' This argument, which the supreme court has since 
formulated most precisely in Martin vs. Hunter (Wheaton, 
L, 304), was convincing, and the proposal was not adopted. 
If it had been, a change in principle would have been 
made in the constitution by this tenth amendment. The 
nation would have gone back in part to the fundamental 
ideas of the confederation, — ideas which were purposely 
and decisively opposed by the constitution. If congress, 
in the paragraph already quoted, was authorized to 
" make all laws which shall be necessary and proper " to 
carry out any of the powers delegated it by the constitu- 
tion, yet this " necessary " is not to be understood in the 
absolute sense of the word. The " proper " qualifies it. 
The assertion that congress can use only the means, with- 
out which it would be absolutely impossible to discharge 
the task imposed upon the different federal powers by 
the constitution, imputes an absurdity to the framers 
of the constitution. If the end is constitutional, congress 
has free choice of any and all means which, in the nature 
of things correspond to the end to be reached, so far as 
their use is not forbidden it by the constitution. "Whether 
they are proper, congress alone is to judge. This is a 
question, not of law, but of politics. The powers of the 
federal government are in exact relation with the tasks 
imposed upon it. Paragraph 18 of the eighth section of 

1 In a certain way, therefore, it is right to say that not only tlie 
powers of congress, but much more the matters in regard to which 
congress is empowered to act, are set forth in the constitution, but, in 
my opinion, Tiffany (p. 179) puts this too baldly. 



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THS FEDERAL OONSTITUTION. 56 

the first article is just as little a source of new and inde- 
.pendent powers for congress as the tenth amendment is 
a limitation of the sphere of authority provided by the 
constitution for the national government. 

§ 17. Interpretation and Construction of the Consti- 
tution. The two provisions mentioned simply formulate 
and make precise the fundamental principles which con- 
trol the interpretation and construction of the whole coii- 
stitution. We must apply to them, as well as to the rest of 
the constitution, the further principle that words are to 
be understood in their natural and — when a technical 
expression of diflferent meanings is used — in their ordi- 
nary sense. No violence must be done to them. Their 
scope must not be stretched by skillful interpretation. 
They must not, however, be too literally read. Moreover, 
the same word has by no means the same meaning in 
every part of the constitution, and as every single word 
must be interpreted by its context, so must every single 
clause be read and interpreted in unison with all the other 
clauses. The constitution is a wliole. It is not to be made 
an arena for juristic hair-splitting. In every doubtful 
case, the point of view from which to ascertain the true 
intent of the framers of the constitution must be the 
general end which the provision was intended to serve. 
Judges as well as law-givers must recognize the absolute 
impossibility of any conflict between the diflferent provis- 
ions of ,the constitution. Since the will of the people as 
expressed in the constitution is unconditionally supreme, 
the fact must be recognized that this will is never untrue 
to itself, and is always entirely conscious of itself. But 
the expression of this will cannot always be put with 
such absolute certainty as to leave no room for honorable 
diflferences of opinion. This is implied, indeed, in that 
general method of expression in the constitution which 



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56 OOKSTITUTIONAL LAW OF THE UXITBD STATES. 

we have recognized as a necessity lying in the very natore 
of the thing. It is partly due, too, to the fact that the 
constitution was not, to the people who gave it, an end in 
itself, but a means to the end, and this end seemed to de- 
mand that, in regard to certain things, the establishment 
of an inviolable principle should be avoided. 

§ 18. The Limits op Authority. This has especial ref- 
erence to the dividing line between the authority of the 
federal powers and of the states. The all-pervading 
fundamental thought of the constitution is that certain 
interests are common to the whole people of the Unior, 
and that therefore, in regard to these, political powers 
have been intrusted to a central government, and that 
other interests and needs must be left to the care of the 
states, because they vary according to locality. But the 
people have, in addition, rights, interests, and needs 
which are both national and local in their nature, and, in 
regard to these, both the federal and state governments 
must have duties and powers corresponding to these du- 
ties. It by no means follows from the delegation of a 
power to the federal government that the same power 
does not belong to the states. In every single case, the 
question must be put whether the delegation of authority 
to the one involves its withdrawal from the other. If 
this question cannot be answered aflBrmatively, one must 
further inquire what relation prevails in general between 
the concurrent powers of the national government and 
the states. When the constitution expressly withdraws 
something from the states, or gives it exclusively to the 
national government, of course no difficulty can arise. 
Even when neither of these contingencies happens, the 
exclusive power of the national government must be rec- 
ognized, if the nature of things forbids the subjection of 
the citizens in regard to the question at issue to two dif- 



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THE" FEDERAL OONSTITDTION. 67 

ferent and independent legislative wills. Again, some 
powers are delegated to the federal government without 
any obligation to use them. Thus congress has a right 
to pass a general bankrupt law, but it need not do so. 
It has repeatedly done so, and repeatedly repealed the 
law at short intervals. In such a case, there is nothing 
to prevent the states from exercising a similar power, as 
long as the federal government does not exercise it, but 
as soon as the latter does so, the state laws will ipso facto 
become of no validity unless the nature of the matter 
permits two different legislative wills to act upon it at 
the same time. Here, in distinction from the case last 
mentioned, the exclusiveness of the federal authority does 
not depend upon the nature of the right in itself, but it 
comes into force for the first time by the use of the right. 
Finally, it often happens, as for example, in regard to the 
right of taxation, that it is either convenient or even 
necessary that the individual should be subject at the 
same time to different legislative wills. But the fact that 
this may happen without conflict between these wills 
does not exclude the possibility of conflict. If conflict 
comes, the state laws, must yield to the national laws, but 
they yield to them only so far as they are irreconcilable 
with them. In principle, the authority of the states suf- 
fers no wrong, but they cannot exercise it in a particular 
way because the national government, in regard to the 
method of exercising the same power, has so far the 
preference that the accomplishment of its will cannot be 
interfered with, and of course not actually hindered. If 
a conflict of rights cannot happen, yet, from the mani- 
fold nature of these legal possibilities, conflicts over 
rights may easily arise. And even when the respective 
spheres of the federal and of the state governments do 
not intersect each other in this way, yet, of course, a 



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68 CONSTITUTIONAL LA.W OF THE UNITED STATES. 

question, may arise between them under every provision 
of the constitution, as to whether each of them has 
acted within its constitutional powers. The framers of 
the constitution could not have overlooked this, and 
hence it is a priori evident that they must have taken 
care to bring about a legal decision of all such questions. 
If this were not so, the corner-stone of their whole build- 
ing would have been wanting. But if this is so, then no 
ground is left for seeking such remedies as nullification, 
which can be based upon not a single word in the consti- 
tution» It is not by the spinning of a web of logic out 
of unproved and unprovable assertions that we can find 
what the constitutional law upon this point must be. 
The constitution shows what the constitutional law is. 

§ 19. Conflicts of Authority. If the rule that words 
are to be understood in their natural sense is followed, all 
difficulties which arise from the doctrine of state sov- 
ereignty in regard to the decision of unavoidable con- 
flicts of authority disappear. The constitution is not a 
compact between the federal government and the states, 
and inasmuch as they do not stand in the relation of par- 
ties to each other or of parts of one another, there is no 
need of a common arbiter superior to them to decide 
questions between them. The non-existence of such an 
arbiter, therefore, does not imply that either of the al- 
leged parties must ultimately decide for itself. The peo- 
ple of the United States and the population of the states 
are the same individuals. Federal government and state 
governments are their creatures, and have the same ob- 
ject — the welfare of the people. The co-ordination of the 
federal government and of the states, so far as the affairs 
of the commonwealth are concerned, is an absurdity just 
as it is an absurdity to claim that the federal govern- 
ment, the creature of the constitution, is one of the par- 



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THE FEDEIUIi CONSTITUTION. 59 

ties to the constitutional compact. It is an " agent " as 
the champions of the doctrine of state sovereignty, in 
opposition to their own theory of " parties," call it, but 
it is not, as they aflSrm, an agent of the states, but an 
agent of the people of the United States, and their ex- 
clusive agency for all their affairs as a commonwealth. 
It is as little master as it is servant of the states; but, as 
the general delegate of the master of the common- 
wealth for the commonwealth, it alone has authority 
within the sphere allotted to it. The Union is through 
the constitution a legal state. If the constituent mem- 
bers of a state had each for itself the power of ultimate 
decision as to what is law, this would be a negation in 
principle of the idea of a legal state. The commonwealth 
has given to the federal government its own sphere, and, 
therefore, the parts of the commonwealth cannot be 
judges as to whether it has overstepped its limits.^ The 
opinion of the commonwealth can find lawful expression 
only in the manner provided by the constitution, i. ^., 
through the constitutional organs of the commonwealth 
in the discharge of their constitutional functions. 

On the other hand, it has been claimed that the fed- 
eral government could break through the paper barriers 
of the constitution at every point and make itself abso- 
lute master, if it alone must decide apon the constitution- 
ality of its acts. In theory, this conclusion cannot be 
questioned, but in practice it is, in substance, an utterly 
false conclusion. The constitution avoids this danger in a 
practical way by the organization of that whole apparatus 

1 Story, I., p. 256, in his discussion of this question, recalls the fact 
that even under the articles of confederation, according to an unani- 
mous vote of congress, the states were not authorized to put their 
own construction upon treaties, because treaties were made not by 
them but by congress. 



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60 OONSTITUTIOWAL LAW OF THE UNITED STATES. 

of government which the Americans ordinarily call "a 
system of checks and balances." The law-making power 
of congress is under the direct control of the conditional 
veto right of the president. The members of both 
houses of congress are directly or indirectly elected by 
the people, and not at long intervals. The people are 
therefore always able to prevent an unconstitutional mis- 
use of the law-making power by intrusting it to persons 
who w^ill, with greater faith, fulfill their first duty of 
keeping the constitution in view, in their law-making, as 
the supreme and absolutely binding law of the land. In- 
tentional and preconcerted usurpations are therefore pos- 
sible only with the actual sanction of the people from 
the very beginning. This, however, does not give a suf- 
ficient protection against systematic oppression of minor- 
ities, and still less does it ensure to individuals that their 
constitutional rights shall not be interfered with and 
trenched upon in good faith through unconstitutional 
laws or acts of the federal powera. But the framers of 
the constitution intended to transform the old Union, not 
only into a state capable of life, but into such a state 
founded upon law, and they therefore could not forget 
to endow it expressly with the majesty of law, and that 
in such a way that the law should be as fully protected 
under all circumstances as it can be in the nature of man 
and of human institutions. 

The third article relates to the "judicial power," {. <?., 
to the judicial majesty of the United States, creates the 
supreme court of the United States as the highest organ 
of this power, authorizes congress to create other federal 
courts, and declares that " the judicial power shall extend 
to all cases in law and equity arising under this constitu- 
tion, the laws of the United States, and treaties made, or 
which shall be made, under their authority," that is, under 



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THE FEDEBAL OONSTITtmON. 61 

that which it afterwards designates as the supreme law 
of the land. It could not be more clearly stated that 
nowhere and nohow outside of the federal government 
are single parts of the commonwealth and of the whole 
people to decide in the last instance, but that a factor of 
the federal government, created for this purpose, is to 
decide, in a way binding upon all, what the law is, 
according to the constitution and the federal laws, 
provided the questions in dispute come in form and 
substance within the scope of this provision. There 
is not the slightest support in the constitution for 
the assertion of the state's-rights school that this can 
never be the case in disputes about the respective author- 
ity of the federal government and the sovereign states. 
This assertion rests only upon a general abstract argument 
from the alleged nature of the Union as a league of 
states.^ On the other hand, it has never been questioned 
that this clause does not cover all the disputed questions 
of constitutional law, and that even questions of the 
relative authority of the federal government and of the 
states cannot always be brought within it. In the first 

1 Even Madison could bring forward no other argument when he, 
weU-called the father of the constitution, was driven by the stream 
of events into the front rank of the state's-rights school. He said, 
in 1800, in the Virginia report, '* in relation to the rights of the par- 
ties to the constitutional compact," that the federal courts oould not 
possibly decide in the last instance, because, " on any other hypothesis, 
the del^^tion of judicial power would annul the authority delega- 
ting it.'* The Federalist, No. 89, had expressly stated that the su- 
preme court " in controversies between the two jurisdictions," that 
is, of the states and of the Union, ** is ultimately to decide." In 
1810, Pennsylvania proposed to create, by an amendment to the con- 
stitution, another tribunal for the decision of such questions. Nine 
states, among them six slave states, with Virginia at their head, re- 
jected this upon the ground that the supreme court was already 
entrusted with this task. Not one state voted for the amendment. 



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62 CONSTITUTIONAL LAW OF THE UNITED STATES. 

place, the controversy must have assumed the form of an 
actual law-suit in order to come before the courts at all. 
If it has been brought before them in this form, yet they 
never sit as courts to decide directly upon the constitu- 
tionality of laws, or of other acts of the government. 
They decide constitutional questions in a given case only 
by stating the reasons for their judgment. Strictly 
speaking, it is only the case which is decided, and there- 
fore their judgment is absolutely binding on all individ- 
uals and on all political powers only so tar as this case is 
conceiTied. But since it is fair to assume that in all anal- 
ogous cases the same decision would be given, the reasons 
for a judgment upon the constitutionality of the law 
usually amount to an actual decision of the question of 
constitutionality. But that these questions cannot be 
decided^ in a proper sense of the word, is clear from the 
fact that the supreme court can change its opinion, and has 
changed it, in constitutional questions of the highest sig- 
nificance after the lapse of a comparatively short time.* 
It sometimes only needs the introduction of a single 

'^ ^ Thus, for example, in the so-caUed legal tender cases in 1870, by 
five to three votes, the court denied congress the power to make the 
paper money of the United States legal tender for debts contracted 
previously. In the following year, this decision was reversed. The 
reversal was brought about by adding one judge to the supreme 
court, and by notifying the president that the senate would make \\b 
approval of the nomination of the new judge, as weU as of one to fiU 
a vacancy which had meanwhile occurred, dependent upon the 
position of the candidates on this question. President Grant re- 
sponded to the wish of his party and the previous majority became 
a minority. See the article entitled " The Session," in The North 
American Review, CXI., pp. 48, 49. The new decision based the 
power upon the war power. Now, in 1884, the authority has be^i 
again recognized, but inasmuch as, in this case, an appeal to the 
war power was not possible, it has been deduced from the right to 
borrow money. The majority of 1871 declared that this had nothing 
to do with the matter, and therefore based it upon the war power. 



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THE FEDEBA.L CONSnTUTION. 63 

new judge to transfonn the minority into a majority. 
Moreover, the supreme court is not superior, but equal, to 
the two other factors of the federal government. Within 
the sphere of their authority, the latter are not only 
authorized but directed to judge with entire independence 
of the constitutionality of their acts. While the supreme 
court has always given its opinion in the last instance in 
regard to disputed questions of constitutional law which 
belonged to its Jorum, and were brought before it in a 
constitutional way,^ it has also repeatedly declared that it 
was neither directed nor permitted to concern itself with 
the political duties of the president, and especially was 
not authorized to interfere with them upon the assump- 
tion that he was about to carry out an unconstitutional 
law.*^ And it is even more certain that it does not belong 
to the supreme court to make rules for the exercise by 
congress of its legislative powers. The task of the court 
is to say what is law under the constitution, the federal 
laws and treaties. The task of congress, on the other 
hand, is to decide what shall be law under the constitu- 
tion.' Thus, for example, not the court, but congress 

J See Martin vs. Hunter, Wheaton, I., 804; McCuOoch V8. Mary- 
land, Ibid., IV., 816; Cohens vs. Virginia, Ibid., VI., 264; Oibbans 
vs. Ogden, Ibid., IX., 210; Bank of Hamilton vs. Dudley, Peters, IL, 
524; Chisholm vs. Georgia, Dallas, II., 419; Ware vs. Hilton, Ibid., 
m., 199. 

2 See Mississippi vs. Johnson, Wallace, IV., 475, and Georgia vs. 
Stanton, Ibid., VI., 51. 

s That the courts actually take part in the formation of law can- 
not be questioned. They cannot, however, on this account, lay 
claim, as Pomeroy (pp. 66, 67) would have them do, to a share of the 
law-making power. The constitution expressly entrusts congress 
with "aU" the law-making powers delegated in it and by it, and 
there can bo no constitutional law-making power which is not created 
by the constitution. The judges are never authorized, where they 
find a gap in constitutional law, in customary law, or in statute law, 




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64 CONSTITUTIONAL LAW OF THE UNITED STATES. 

alone, must decide whether the means chosen by congress 
for the exercise of a constitutional power are " necessary 
and proper." The court has simply to decide in a given 
case whether the power which is claimed is constitutional, 
and whether the choice of the means selected is not denied 
by the constitution. In a word, the domain of the court 
is not politics but law, and this must control it in decid- 
ing questions of law. The other federal powers must, as 
Lincoln said in his inaugural address, give great moral 
weight to the court's decisions upon the constitutionality 
of laws and other governmental acts, so far as these decis- 
ions are not dicta. But except in the particular case at 
issue, the decisions have no political control of the co- 
ordinate powers. If this were granted, the people would 
have abdicated and have placed their fate in the hands of 
the court. 

This has two consequences of far-reaching significance. 
In the first place, sufficient time may elapse before dis- 
puted questions of constitutional law come before the 
supreme court in such a way that it can deliver a judg- 
ment upon them, so that, meanwhile, the action of the 
other factors of the national government may create 
such a state of facts as to make it, from a political, and 
often even from a legal, standpoint, a very serious mat- 
ter to declare the laws or actions in question to be uncon- 
stitutional. The supreme court would, in such a case, 
come to such a conclusion with the more difficulty, because 

to decide according to their own free wiU, t. e., to decide, as law- 
makers, what the law shall be. Wherever, in such a case, they do 
by their judgments aid in the formation of law, it happens only in 
this way : that they follow to their logical conclusion, and apply to 
the given case, provisions of oonstitutional, customary or statute law. 
Tlie formation of law is therefore, in such a case, not to be considered 
as the creation of a new law. The law is already in existence, but it 
first assumes fixed form upon its application to a concrete case. 



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THE FEDERAX OONSTITUTION. 65 

from the beginning it has made it a maxim that no law- 
should be declared unconstitutional simply because there 
were arguments of a certain weight against its consti- 
tutionality, i. e.y that the presumption should always be 
for instead of against the constitutionality of the acts of 
the other factors of the government.^ But besides this, 
there are other disputed constitutional questions which, in 
their nature, can never be brought before the supreme 
court or decided by it. Moreover, violations of the con- 
stitution may happen, and those who are injured by 

1 See Oooley, ConstittUional Limitations, pp. 18^185, where the 
judicial decisions setting forth this principle are coUected. The sen- 
tence quoted from a decision bj Justice Washington is especiaU}^ 
noteworthy. In the Sinking Fund Cases (W U. S., Otto, IX, 7-18), it 
is said: " This declaration should never be made except in a dear 
case. Every possible presumption is in favor of the validity of a 
statute, and this continues until the contrary is shown beyond a 
rational doubt. One branch of the government cannot encroach on 
the domain of another without danger. The safety of our institu- 
tions depends in no smaU degree on a strict observance of this salu- 
tary rule." James B. Thayer thinks that the whole emphasis should 
be laid upon the word '' rational," and goes on to say : '* But in de- 
termining the constitutionality of legislative action, a court is caUed 
upon to consider what, under the constitution, is the admissible view, 
rather than what is the right view of legislative power." The Nation, 
April 10, 1884. Upon the question of the unconstitutionality of laws, 
the foUowing statements are of great significance: '*The same stat- 
ute may be in part constitutional, and in part unconstitutional, and 
if the parts are whoUy independent of each other, that which is con- 
stitutional may stand, while that which is unconstitutional wiU be 
rejected. But if they are so mutually connected with, and depend- 
ent upon, each other as conditions, considerations, or compensations 
for each other, as to warrant a belief that the legislature intended 
them as a whole, and that if aU could not be carried into effect, the 
legislatare would not pass the residue independently, and some parts 
are unconstitutional, aU of the provisions which are thus dependent, 
conditional or connected, must fall with them." Hammond, L, 22, 
§ 68» where the judicial decisions upon this question are cited. 
5 



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66 CONSTITUTIONAL ULW OF THE UNITED STATES. 

them cannot, whether states or individuals, obtain justice 
through the courts.* When the wrongs suflFered are po- 
litical in their origin, the remedies must be sought in a 
political way. Of course, they can frequently be ob- 
tained only indirectly, and can simply prevent further 
injustice. They cannot give satisfaction for the wrong 
already done. Yet it does not by any means follow from 
this that the sovereign states are authorized " to inter- 
pose," as the state's-rights school phrases it. In these 
oases the diflferent factors of the federal government 
must themselves decide ultimately upon the extent of 
their constitutional powers. If each state had the right, 
so far as its interests were in question, to decide on such 
a point, the federal government would cease to be a gov- 
ernment, and anarchy would become the supreme law of 
the Union. And so the argument that the president, and 
especially congress, if withdrawn from judicial control, 
can bend the constitution to their usurping wills, is of no 
avail. It is a fundamental principle, not only of politics, 
but of constitutional law, that the possibility of the mis- 
use of a power is not a proof of the non-existence of the 
power. 

1 So far as the supreme court is concerned, it is a significant fact 
that it can be appealed to only in certain cases specified in the consti- 
tution, but congress is to decide in which of these cases there shaU 
be a right to appeaL In one case, in which the question of the con- 
stitutionality of the reconstruction laws could be raised only by an 
appeal, congress took away from the supreme court the right to take 
cognizance of the case, and this, too, after the appeal had already 
been taken. The reason for this was, of course, that congress thought 
it undesirable to have a decision of the supreme court See McCar- 
dies Case, WaUace, vn., 506. 



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THE FEDEBAL OONSnTUTION* 67 

ff 

ORGANIZATION OF THE FEDERAL GOVERNMENT. 

§ 20. The Three Depabtments. The articles of con- 
federation preserved the actual condition of affairs 
brought about by the Eevolution, and entrusted the en- 
tire business of the federation to one single organ. On 
the other hand, the constitution established three depart- 
ments. These together constitute the government. In 
spoken and written discussions of this change, Montes- 
quieu's doctrine of the division of powers was mainly 
relied upon. But the type presented by the English con- 
stitution had already had much greater influence. Yet 
the lessons derived from the country's own sad experience 
were decisive. And therefore the authors of the consti- 
tution did not seek to copy the English pattern exactly. 
Much less did they pursue the principle they recognized 
with stubborn doctrinairism and short-sightedness to its 
logical consequences. The three governmental factors 
were congress, the president, and the supreme court. 
They were endowed with the legislative, executive and 
judicial powers. But while their respective jurisdictions 
are sufficiently defined as between themselves, these juris- 
dictions by no means completely coincide with these 
three forms of political action. They intersect each other 
in manifold ways, and often the authoritative will works 
its ends only by their co-operation. The three depart- 
ments stand side by side, but are not, as is frequently as- 
serted, independent of one another. This is so little the 
case that Pomeroy (p. 89) rightly says : " Each is so com« 
pletely dependent on the others that without them it 
could do practically nothing." That this was so arranged 
with full intention appears from the Federalist (No. 48): 
"Unless these departments be so far connected and 
blended as to give to each a constitutional control over 



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08 OONSTITUnOKAL LAW OF THS UNITED STATES. 

the others, the degree of separation which the maxim re- 
quires as essential to a free government can never, in prac- 
tice, be duly maintained." In the organization of the 
government each department was given a constitutional 
control of the other two. Hence there can be no superi- 
ority or inferiority among them. It is, moreover, a funda- 
mental principle of the constitution that the three factors 
of government are in complete co-ordination, — co-ordi- 
nate, but not of equal power. In this respect the consti- 
tution put them on an entirely dilBferent footing, and the 
actual development of circumstances has very consider- 
ably increased this original difference. For that diflfer- 
ence has its only source in the nature of things, i. e.^ in 
the nature of the functions with which they are entrusted. 
In« the political contests of the past — sometimes im- 
pliedly, sometimes expressly — congress has repeatedly- 
claimed, and at least once the president ' has claimed, a 
certain superior authority. Both rested the claim upon 
being in a higher degree than the other the representa- 
tive of the " people," the source of all power. Of such a 
difference the constitution knows naught. Even though 
-it existed, the co-ordination of the governmental factors 
would be absolutely untouched, as each of them indubita- 
bly possesses only the powers delegated to it by the con- 
stitution. Apart from this, moreover, the claim would 
be untenable, because the condition precedent of the 
argument in support of the claim does not exist. The 
people of the United States, as a unified, organized body, 
never appear in the arena of political action. Even where 
the people act most directly, they always do so through 
their state organizations. None of the factors of gov- 
ernment is, therefore, called into life in such a way as to 
justify it in designating itself as a direct representative 
1 Andrew Jackson. 



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THE FEDERAL CONSTITUTION. 69 

of the people. There could be no claim of an order of 
rank among them, even if it were permitted to deduce 
the constitutional law of the land from " the democratic 
principle." In spite of the great rdle which appeals to 
"the democratic principle" have played in the constitu- 
tional history of the United States, there is not the least 
doubt of its absolute inapplicability, for these appeals 
substitute for the constitution this principle, or what is 
declared to be a consequence thereof. The sovereign 
people have made unto themselves the constitution as 
their supreme law. They have therein merely assigned 
a fixed place to each of the three factors of government, 
without regarding it as necessary either to the public 
dignity or interests to admeasure its respective authority 
in proportion to the participation of the people — the 
voters — in its organization. Had that been the inten- 
tion of the authors of the constitution, they would not, 
on the one hand, have given that factor (the supreme 
court), to which its final interpretation as a rule belongs, 
the greatest possible stability, and, on the other, have 
withheld from the " people " every immediate influence 
upon the formation of this factor. 

§ 21. The Term of Office. Just as the provision that 
the members of the supreme court shall be appointed by 
the president with the consent of the senate for life or 
during good behavior disregards " the democratic prin- 
ciple," so all the other provisions relating to the terms of 
office of the other possessors of the powers of government 
depend solely upon the demands of public policy. The 
president is elected for four years, and enters upon the 
duties of his office on the 4:th day of March. Relative 
to eligibility for re-election, the constitution says nothing. 
A single re-election has frequently occurred, but a re- 
elected president has never even been renominated by 



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70 CONSTITUTIONAL LAW OF THE UNITED STATES. 

his party, much less actually re-elected, for a third teniL^ 
The suggestion often made, to abolish the right of re- 
election, has thus far found so little approbation among 
the people that it has been somewhat vigorously agitated 
only during a few presidential campaigns. The vice- 
president is elected simultaneously with the president and 
for the same period of time. Congress consists of the 
house of representatives and of the senate. The mem- 
bers of the house of representatives are elected for two 
years. Their terms all end on every second 4th of March. 
Only in cases of vacancies does the governor of the state 
concerned order a special election to fill the vacancy (art. 
I., sec. 2, § 4).* This term of office is absolutely manda.- 
tory for the whole house. A dissolution of congress is 
not recognized by the constitutron. The term of the 
house of representatives constitutes a legislative period 
and is the basis of political chronology. The count is 
by " congresses," and each new house of representatives 
brings a new '' congress " into existence. The presiden- 
tial term of office covers two legislative periods. The 
senators are elected by the different state legislatures for 
the term of six years. If a vacancy occurs, the governor 
of the state concerned is authorized to fill it provisionally 
by appointment, if the legislature is not in session at the 
time (art. I., sec. 3, § 2).' After the legislature is again 
in session, a new election of a senator takes place, not for 
a term of six years, but only for the unexpired part of 
the term. This is because the senate is not subject to an 

^ A portion of the republican party made very energetic but ulti- 
mately fruitless efforts in 1880 to break through this tradition in favor 
of General Grant. 

s Vacancies occur through death, resignation, expulsion, and accept- 
ance of an office incompatible with that of congressman. 

>The governor is not authorized to make the appointment if the 
vacancy has not yet actually occurred, but is only prospective. 



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THE FEDERAL OONSTITUTIOK. 71 

integral or total renewal, but yet at the expiration of 
each legislative period, one-third of the senators retire. 
On this account (according to art. I., sec. 3, § 2), at the 
foundation of the government, the senators were dis- 
tributed into three classes by lot ; but care was taken 
that both senators from one state did not fall into the 
same class. When a new state is admitted into the Union, 
its senators are likewise placed by lot in different classes. 
Thus the senatorial term of ofSce, next to that of the 
federal judges, is not only the longest, but the senate 
itself is likewise, though not in the manner of the supreme 
court, a permanent body with perpetual succession. The 
government is on the one hand assured, by this systematic 
diversity of official terms, of the continual influx of new 
blood, which keeps it in immediate and active sympathy 
with the existing wishes of the people. On the other 
hand, the danger of the government's reflecting only the 
momentary popular humor is thus also obviated. 

§ 22. Mode of Election. — The Active Right of Suf- 
FBAGE. A like amalgamation of a self-conscious demo- 
cratic spirit and conservative forecast characterizes every 
provision concerning the formation of those two depart- 
ments which, in the more limited sense of the word, are 
designated as the government.^ 

The members of the house of representatives must be 
elected "by the people of the several states " (art. I., sec. 
2, § 1). Farrar (p. 150) thinks that by " people " is meant 
only citizens, and, in fact, only citizens of the United 

1 What is caUed the government in Europe is styled the administra- 
tion in the United States. The difference of speech is well founded 
in fact. In these, as in all like cases where the ideas do not com- 
pletely coincide, for the purpose of greater accuracy I shall always 
adhere to the American terminology, after the expression has once 
been explained. 



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73 ooNSTmmoNAL law of the united states. 

States. This assertion is neither justified by the most 
famous commentators on the constitution, nor is it in ac- 
cordance with practice. The provision is simply that 
the representatives shall receive their authority by a di- 
rect election, for further on it is set forth: "The elect- 
ors in each state shall have the qualifications requisite 
for electors of the most numerous branch of the state 
legislature." The active right of voting for congress- 
men, it thus appears, is not established on the same basis 
for all of the United States, either by the constitution or 
laws of the Union. In each state it may be made de- 
pendent upon different conditions. • Foi^nerly the great- 
est diversities prevailed in this respect, and even now 
there is no complete uniformity. Yet from a constita- 
tional standpoint it is not correct merely to state that 
the constitution left it entirely to- the judgment of the 
states to determine the qualifications of the voter at elec- 
tions to the house of representatives. It would be more 
correct to say that the states have never had any power 
whatever in the matter.^ The states have only to decide 
who shall possess the franchise at elections to the most 
numerous branch of the state legislature. The constitu- 
tion makes the possessors of this franchise the electors 
for the house of representatives. It may seem at first 
sight that this is only a logical distinction, without any 
practical difference. But this is not so. The states, in 
many instances, in framing their election laws, paid no 
attention to the elections for the house of representatives. 

1 Ck>ngre68 also has the right to protect voters in the exercise of the 
franchise; to punish election officials for unlawful practices; to di- 
rect the registration of voters, etc. How far it may exercise these 
rights is within its judgment, but so far as it does exercise them the 
conflicting provisions of the state laws wiU be of no avail. Ex parte 
Siebold, 100 U. S., 871 ; Ex parte Clarke, 100 U. S. (Otto, X), 299. 



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THE FEDERAL CONSTITUTION. Y3 

They considered simply their own public affairs. This is 
why, for instance, many states have given the franchise 
to non-naturalized foreigners, who thereby were endowed 
under the constitution with the franchise at elections to 
the house of representatives. We have, then, this curious 
spectacle : that, in the democratic republic, male citizens 
of full age, of good character, and of sound mind, cannot 
vote for members of the people's house of the Union, 
while certain persons who are not citizens can do so. 
Having or not having the franchise depends, in the first 
place, upon the domicile. A change in that may give or 
may forfeit the franchise. In the United States, as such, 
universal suflFrage (so called) does not exist. Moreover, 
citizenship is not a condition precedent of the fran- 
chise.^ 

The amendments adopted after the civil war have 
brought about a much greater uniformity with regard to 
the franchise, but the anomalies just noted have not been 
set aside. The second section of the fourteenth amend- 
ment declares that the states shall be represented in the 
house of representatives in proportion to the total number 
of their inhabitants, exclusive of the imtaxed Indians.* 

1 See Scott vs, Sanford (better known as the Dred-Scott deciBion), 
Howard, XIX., 404-414. 

2 Art. I., sec. 2, § 8, provides that each five slaves (but this word 
was avoided) should be counted, in regard to representation, as three 
persons. The further declaration of this paragraph, that "direct 
taxes" should also be levied in proi)prtion to the population of the 
states, is not touched by the fourteenth amendment, and is therefore 
still in full force. What is meant by ** direct taxes " has evoked very 
divergent views, and there has been no authoritative decision of the 
question. I must therefore rely upon the simple statement of the 
clause, and can do tliis the more readily since before the civil war 
direct taxes were levied only thrice, — in 1798, 1813 and 1816. The 
nature of certain taxes levied during the war is a subject of contro- 
versy. Since its termination the controversy has again assumed a 



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74 OONSTITUTIONAL LAW OF THE UNITED STATES. 

"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 judi- 
cial officers of a state, or the members of the legislature 
thereof, is denied to any of the male inhabitants of such 
state being twenty-one years of age and citizens of the 
United States, or in any way abridged, except for par- 
ticipation in rebellion or other crime, the basis of repre- 
sentation therein shall be reduced in the proportion 
which the number of such male citizens shall bear to the 
whole number of male citizens twenty-one years of age 
in such state." So far as this provision is concerned the 
right of the states to regulate the franchise according to 
their own opinions is not in the least abridged ; but it puts 
a strong pressure on the states to introduce universal suf- 
frage. Every considerable limitation of the right of suf- 
frage henceforth would bring about a sensible diminution 
of a state's representation in the house of representatives. 
Pomeroy (p. 135) justly observes that this provision, di- 
rected mainly against the former slave states and in- 
tended to force them to grant full political equality to the 
freedmen, was the surrender of a fundamental principle 
of the constitution. It is not limited to the exercise of 
an influence upon the elections to the house of represent- 
atives. It subjects the states to the strongest pressure 
in framing their laws concerning the right of suffrage in 
state elections. Hitherto, on the contrary, the constitu- 
tion had, as a matter of fundamental principle, left with 

purely academic character, and the economic relations of the Union 
snggest that it wiU retain this character for generations to come. 
According to the decision of the supreme coart in Springer vs, Tlie 
United States (102 U. S., 586), the income tax is not a " direct tax** 
within the meaning of the constitution; only poU taxes and taxes on 
real estate are to be regarded as " direct.** 



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THB FEDERAL CONSTITUTION. 75 

the states the absolute right of self-government in all 
affairs peculiarly their own. 

In one provision, the fifteenth amendment went far in 
advance of the fourteenth. It reads: " The right of citi- 
zens 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." In 
opposition to a widespread opinion, the courts have de- 
cided, in every case brought before them, that nobody 
obtained the right to vote by reason of this amendment. 
The United States, as well as the several states, can still 
withhold it forever from every colored man and former 
slave, but they cannot do so on account of his race, color 
or previous condition of servitude. The states' right of 
self-government relative to the franchise has now un- 
doubtedly suffered a legal limitation, not because they 
have been obliged to grant the suffrage to certain per- 
sons, but because they are forbidden to refuse it on cer- 
tain grounds. 

The number of members of the house of representatives 
is not fixed by the constitution. It merely declares that 
every tenth year an enumeration of the people shall be 
made, that the number of representatives shall not exceed 
one for every 30,000 inhabitants, and that each state 
shall have at least one representative (art. I., sec. 2, § 3). 
The basis of representation has been repeatedly changed 
by law in accordance with the results of the decennial 
census. After the first census it was fixed at 33,000; 
BOW it is 154,325; and the number of members has grown 
from 65 and 105 to 325, to which a delegate from each of 
the eight territories is to be added.^ 

1 There were 65 members according to the temporary provisions of 
the constitution, and 105 after March 4, 1798, upon the basis of the 
first census. Nevada had, according to the census of 1880, only a 



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W OONSTITUTIONAL LAW OF THE UNITED STATES. 

Just as with reference to the membership of the house 
of representatives, so also in regard to the other regula- 
tions of elections — and that too for both houses — the 
constitution has guarded the possibility of letting expe- 
rience shape matters in fullest accord with the changing 
demands of every new situation. Art. I., sec. 4, § 1, pro- 
vides: " Th J times, places and manner of holding elec- 
tions for senators and representatives shall be prescribed 
in each state by the legislature thereof, but the congress 
may at any time by law make or alter such regulations, 
except as to the places of choosing senators." This ex- 
ception is evidently founded on the fact that the senators 
are elected by the legislatures, and it would not be in har- 
mony with the federal character of the Union to grant to 
congress the right of determining the places for the meeting 
of the legislatures of the several states. For a long time con- 
gress made no use of the powers granted it by this clause. 
In 184:2, for the first time, it declared that elections for the 
house of representatives should take place by districts.^ 
But now, on the contrary, the constant and actual consoU- 
dation of the Union has found even in this respect a cor- 
responding legal expression. An act of February 2, 1872, 
provides that from and after the year 1876 in every second 
year the election for members of the house of representa- 
tives shall take place on the Tuesday succeeding the first 
Monday of November in fixed geographical districts.* 

population of 62,266, and would thus have probably had no represent- 
ative, if the constitution had not provided in this way for such a 
case. So, too, the population of Delaware feU several hundreds be- 
low the established standard-number of 154,825. At this time four 
r states have each but one representative. 

I For a discussion of the disregard of this law on the part of several 
states and the approval of their action by the house of representa- 
tives, see my Constitutional History, IL, 505 et aeq. 

^Statutes at Large, XVII., 28, sees. 2, 8. The fifth section of this 
law declares that in future no state shall be admitted into the Union 



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THE FEDERAL CONSTITUTION. Y7 

The votes cast must be on either written or printed bal- 
lots.^ The elections of senators had already been, by an 
act of July 25, 1866, very precisely arranged and regu- 
lated. The election must take place on the second Tues- 
day after the assembling and organization of the legis- 
lature. In each house each member declares his vote 
viva voce. At noon of the day following both houses 
meet in joint convention, and if in each the same person 
has obtained a majority of all the votes cast, the election 1 
is completed. If this is not the case, or if one of the two 
houses has not entered upon the election in the manner 
prescribed, then the joint convention proceeds to viva- 
voce voting until a majority of the voters have united 
upon one person. The election is legal only when a ma- 
jority of all the members elect are present and vote. For 
elections necessary on account of a vacancy substantially 
the same provisions obtain. The regular elections are held 
by the last legislature elected before the expiration of the 
term of office of a senator. 

" without having the necessary population to entitle it to at least one 
representatiTe according to the ratio of representation fixed by this 
bill." After the census of 1870, in accordance with the proyiaions of 
this act, there was one representative for every 181,425 inhabitants. 
Ab it is not intended to compel the states to headlong changes of 
their flection districts, and the number thereof naturally often fails 
to agree with the number of representatives to which, on the basis 
of a new census, the states are entitled, they are permitted to elect 
the additional quota of representatives from the state at large,— con- 
gressmen at large. 

1 Act of February 28, 1871, sec. 19; Statutes at Large, XVII., 440. 
Formerly the states even in this respect could act as they deemed 
proper. It is left for them to determine whether an absolute major- 
ity is necessary to elect or a plurality shall suffice. In' opposition to 
the law prevailing in England, the New England colonies adopted 
wholly or in part the principle of the absolute majority, but in the 
course of time the principle of plurality wins more and more the pre- 
dominance in the United Statesf, if indeed the former has not yet been 
completely displaced. 



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78 CONSTIXrTIONAL LAW OP THE UNITED STATES. 

§ 23. The Eight of Instruction. No constitutional 
relation of any kind whatsoever exists between the sen- 
ators and legislatures, after a valid and complete election. 
Legislatures have, indeed, very frequently, by passing 
resolutions, "instructed" the senators of their state — 
and that, too, without regard to whether they were elected 
by them or former legislatures — as to what attitude they 
should take upon certain questions. The senators — 
especially in early times those of the democratic party, 
as a rule — frequently acknowledged the right of "in- 
struction." There is not, however, a particle of doubt 
that the claim of such a right, as has already been said, 
is not only extra-constitutional, but directly unconstitu- 
tional. The constitution does not once recognize the 
constituent's right of instruction. But the legislatures 
are as little the constituents of the senators as the presi- 
dential electors are the constituents of the president. 
Like the latter, they are merely entrusted with the elec- 
tion. If legislatures possessed the right of instruction, 
they would necessarily possess the power to enforce 
obedience. They would, therefore, have to be able to 
unseat a disobedient senator. But the constitution fixes 
the term at six years, and the legislatures cannot lengthen 
or shorten it by even one day. Since, moreover, in all the 
states, one house of the legislature is renewed at least every 
two years, the balance of parties during the senatorial 
term of oflBce may be overthrown at least once, and quite 
likely twice. But even the most extreme state's-rights 
advocate never ventured the assertion that such an event 
imposed on a senator a moral obligation to resign. Nev- 
ertheless, if this happens, it is not simply on one certain 
question that he is out of accord with the will of the leg- 
islature; on all party questions he opposes it. A right of 
instruction tLat presupposes an identical partisan position 
is a manifest absurdity. And yet it must depend upon 



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THB FEDERAL CONSTITUTION. Y9 

this presupposition, for the two senators of a state are 
elected bj^ two different legislatures, and it is therefore 
a matter of common occurrence that they should belong 
to two diflferent parties. Despite this, they are absolutely 
equal representatives of their sfiate. The constitution 
(art. L, sec. 3, §1) provides: "Each senator shall have 
one vote." It is therefore proper only in a very limited 
sense to call the senate the congressional house of states. 
The votes of the states are not cast there. Each senator 
votes according to his own convictions, and on his own 
personal responsibility. A legislature cannot assert that 
the state is practically deprived of its proper weight in the 
senate because the vote of a senator elected by a former 
legislature neutralizes the vote of one of an opposite 
party elected by a more recent legislature. The state 
has no right of complaint, moreover, even when — as 
may easily be the case — both senators belong to a party 
which, at the moment, is in a minority in the state. 

There is no difference in the political existence of the 
house of representatives and of the senate, from the 
standpoint of constitutional law. Their functions are not 
quite the same; the mode of election, the voters, and the 
tenure of office are different; and in the senate the states 
as such have equal representation, whereas in the house 
of representatives representation is in proportion to the 
population. But the constitutional nature of the tenure 
of office is the same for both houses of congress. The 
mistake of the state's-rights conception of this question 
is, that it treats the legislatures and the states as identical. 
But according to the constitution, the latter, not the 
former, are represented in the senate.^ 

1 It has happened that senators have resigned because obedience to 
instructions was irreconcilable with their consciences, and they rec- 
ognized the right of the legislature to demand the representation of 
Hb views in the senate. 



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80 CONSTITUTIONAL LAW OF THE UNITED STATES. 

The conditions upon which the passive right of suffrage 
(the right to be voted for) depends are in substance the 
same for both houses of congress. For the senate they are 
simply somewhat more severe. To be eligible a person 
must be at least twenty-five (thirty) years of age, have 
been a citizen of the United States for at least seven (nine) 
years, and be an inhabitant of the state at the time of the 
election.^ The third section of the fourteenth amendment 
moreover provides : " No person shall be a senator or rep- 
resentative in congress, or elector of president and vice- 
president, or hold any office, civil or military, under the 
United States or under any state, who, having previously 
taken an oath as a member of congress, or as an officer of the 
United States, or as a member of any state legislature, or as 
an executive or judicial officer of any state, to support the 
constitution of the United States, shall have engaged in 
insurrection or rebellion against the same, or given aid 
or comfort to the enemies thereof. But congress may, 
by a vote of two-thirds of each house, remove such disa- 
bility." During the so-called period of reconstruction, 
these provisions were of great moment. Since its close, 
they are of importance only in so far sLs they tend to pre- 
vent the revival of doctrines which, in their ultimate con- 
sequences, led to the absurdity of constitutional rebellion. 

§ 24. Congress. As the elections to the house of rep 
resentatives and to the senate in accordance with the 
provisions of the constitution and the laws proceed with- 
out the co-operation of the federal executive power, so in 
the regular course of affairs there is no need of its inter- 
vention to call the representatives and senators to assem- 

1 The tenure of office does not cease bj reason of removal of the 
elected person to another state after his election. Diplomatic offi- 
cials of the Union, even when at their posts in foreign countries, are 
recognized as "inhabitants" of their respective states and are eligi- 
ble. 



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THE FEDERAL CONSTITUTION. 81 

ble together in congress. Art. L, sec. 4, § 2, provides : 
** The congress shall assemble at least once in every year, 
and such meeting shall be on the first Monday in Decem- 
ber, unless they shall by law appoint a different day." ^ 
The president can, however (art. 11., sec. 3, § 2), " on ex- 
traordinary occasions convene both houses or either of 
them." 2 

In congress itself different views have been maintained 
with great vigor on the question as to whether the con- 
gress comes into life of and by itself by virtue of the 
meeting of the members of both houses, or whether the 
congress first exists when both houses have completed 
their organization.' The question, at bottom, however, 
has only an academic interest, as the co-operative action 
of both houses as a congress unquestionably is possible 
only after their formal organization is effected. Touching 
the senate, however, such an organization can be spoken of 
only in a very limited sense, since " the vice-president of 
the United States shall be president of the senate " (art. 
I., sec. 3, § 4). " The senate shall choose their other officers 
and also a president pro tempore in [case of] the absence 
of the vice-president, or when he shall exercise the office 



1 By virtue of the authority granted by the last clause, this pro- 
vision was enlarged by the act of January 22, 1867, to the extent that 
congress should also meet upon the day its lawful existence begins, 
to wit, on March 4 of the odd-numbered years, and that every con- 
gress should thus have three regular sessions. This law, however, 
remained in force only for the three legislative periods of the 40th, 
4l8t and 42d congresses. 

2 The clause proceeds : ** And in case of disagreement between them, 
with respect to the time of adjournment, he may adjourn them to 
such time as he shall think proper." This power has never yet been 
used. It is, however, to be observed, that this right of adjournment, 
by the president accrues only in the one particular case. 

» See my CanstitiUional History, V., 212, 218. 
6 



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82 CONSTITUTIONAL LAW OF THB UNITED STATES. 

of president of the United States." ^ The house of rep- 
resentatives, on the other hand, in addition to its other 
oflBcers, has to elect its permanent chairman, who bears 
the title of speaker (art. I, sec. 2, § 5). As he has to ap- 
point the standing committees which, so far as the house 
is concerned, as a rule practically shape all legislation, the 
election of the speaker is an act of pre-eminent political 
importance. In times of great political excitement, when 
neither party has an absolute majority, the organization 
of the house is apt to become a very serious question. 
The other factors of government have no power to en- 
force it.2 In other words, the majority of the members- 
elect have the power to deprive the Union for the legisla- 
tive two-year period of its law-making functions by 
•preventing the organization of the house. On the other 
hand, neither of the two houses by itself can close a ses- 
sion after congress has once met either by virtue of the 
constitutional provisions or upon the call of the president. 
"Neither house, during the session of congress, shall, 
without the consent of the other, adjourn for more than 
three days, nor to any other place than that in which the 
two houses shall be sitting " (art. L, sec. 5, § 4). 

§ 25. The Executive Powek. " The executive power 
shall be vested in a president of the United States of 
America" (art. II., sec. 1, § 1). The vice-president has no 
share in the executive power. His sole task, as long as 
the president acts as such, is that of presiding over the 
senate. Even though the executive authority is far re- 
moved from independence of the other factors of govem- 

^ Shortly before the close of each session, the vice-president gives 
the senate an opportunity to choose a president pro tempore, so that 
it shall not be without a presiding officer, if before the next session 
of congress the vice-president die or assume the office of president. 

! See the sketch of the two-months campaign over the speakership 
in the 84th congress in my ConstittUiondl History, Y., 20^219. The 
house of representatives has no permanent vice-chairman. 



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THE FEDEBAX CONSTITUTION. 83 

ment, it is nevertheless singularly simple. The president 
is dependent in manifold ways upon the other factors, 
but he alone is the sole possessor of what the constitu- 
tion describes as the executive power. The law may con- 
fer upon the so-called secretaries or members of the 
" cabinet," as well as upon other executive officers, inde- 
pendent functions, but the constitution recognizes no rep- 
resentative of the president, no one upon whom either 
the law or the free will of the president can temporarily 
confer even the slightest of the privileges and duties 
which the constitution grants to and imposes upon the 
bearer of the executive power. " In case of the removal 
of the president from office, or of his death, resignation, 
or inability to discharge the powers and duties of the said 
office, the same shall devolve on the vice-president, and 
the congi'ess may by law provide for the case of removal, 
death, resignation or inability, both of the president and 
vice-president, declaring what officer shall then act as 
president, and such officer shall act accordingly, until the 
disability be removed or a president shall be elected." 
Art. II., sec. 1, § 5. The constitution thus creates in the 
person of the vice-president an official who in a given case 
is to take the place of the president. It commits to con- 
gress the task of providing for all cases in which he can- 
not discharge the duties of the office. But in every case 
the rights and duties of the place pass fully and wholly 
over to the designated person, either until the expiration 
of the term of office or temporarily. Any separation of 
these rights and duties, or of the responsibility imposed 
by them, is under all circumstances absolutely excluded.^ 

1 By virtue of the authority conferred in the second clause of the 
paragraph cited above, congress has ahready provided, by the act of 
March 1, 1792, for the case of the inability of both the president and 
vice-president to act. After the vice-president, the president pro 



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84 CONSTITUTIONAL LAW OF THE UNITED STATES. 

As the president and vice-president are elected at and 
for the same time, the right to be chosen to both oflBces is 
dependent upon the same conditions (12th amendment). 
To be eligible, it is necessary to be a native-bom citizen of 
the United States,' to be at least thirty-five years of age, 

tempore of the senate, and after him the speaker of the house, takes 
the office. Whether these, like the vice-president, are to exercise the 
office of president until the expiration of the presidential term de- 
pends upon how near that is. As soon as the dual vacancy occurs, 
the secretary of state must notify the governor of every state. If 
this notification is issued less than two months before the first 
Wednesday in December, and the presidential term ends on the third 
day of March following, then the president jpro tempore of the senate 
(or the speaker) performs the duties of the executive authority until 
the inauguration of the new president. If this be not the case, then 
the notification directs the choice or the appointment of electors. 
This is to take place thirty-four days before the first Wednesday m 
December, if at least two months intervene between this date and 
the proclamation. Otherwise it is to take place thirty-four days 
prior to the first Wednesday in December of the following year. The 
election by the electors is to take place on the first Wednesday of 
December. Neither the constitution nor the laws provide for vacan- 
cies occurring by reason of the impossibility of electing either a pres- 
ident or vice-president. If the house of representatives has to elect 
the president and does not do so before the 4th of March, when the 
new presidential term begins, then " the vice-president shall act as 
president " (12th amendment). Even so there is nothing determined 
as to who should act as president when, according to the act of 
March 1, 1792, the speaker ought to do so, and the vacancy occurs 
between the expiration of the legislative period and the organization 
of the new congress, so that there is no speaker. Hitherto by the 
death of the president the presidency has four times devolved upon 
the vice-president : John Tyler in place of W. H. Harrison, April 6, 
1841; Millard Fillmore in place of Zachary Taylor, July 9, 1850: 
Andrew Johnson in place of Abraham Lincoln, April 15, 1865 ; Ches- 
ter A. Arthur in place of James A. Garfield, September 20, 1881. A 
double vacancy has, however, never yet occurred. 

2 The exception in favor of those who at the time of the adoption 
of the constitution were citizens of the United States of course no 
longer applies. 



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THE FBDEEAIi CONSTITUTION. 85 

and to have had a domicile in the United States for at 
least fourteen years. Art. II., sec. 1, § 4.* As to the 
eligibility of electors, the constitution contains only the 
negative provision that no senator, representative or offi- 
cial of the United States shall be an elector. Article II., 
§ 1. The election is an indirect one. The constitu- 
tion provides that every state shall have as many electors 
as it has senators and representatives in congress, but 
leaves it whoUy to the legislatures to determine how they 
shall be chosen. Although they are elected at present in 
all the states by the people, yet so far as the federal con- 
stitution is concerned, this is solely a matter of fact. 
Every state is still authorized to do as South Carolina did 
for a long time, — have the electors appointed by the leg- 
islature. Or they can be chosen in any other manner 
whatsoever. The time when the election takes place is 
to be fixed by congress. By act of January 23, 1845, it 
fixed the first Tuesday after the first Monday in Novem- 
ber of every fourth year. This law leaves it to the states 
to take proper legal measures to fill by substitutes any 
vacancies at the meeting of the electoral college. 

The Mode of Election. The legislatures determine 
for their respective states the place of the election, but it 
is the duty of congress to fix the time, and it must be the 
same day for all of the states. By act of March 1, 1792, 
the election takes pluce on the first Wednesday in De- 
cember. The electors must vote on separate ballots for 
one person for president, and for another as vice-president.^ 

1 The constitution does not prohibit the selection of the president 
and vice-president from the same state, bnt the electors must vote, 
so far as one of the two offices is concerned, for a person who does 
not belong to their own state (12th amendment). 

2 According to the original scheme of the constitution, each elector 
simply placed two names on his ballot. Whoever received the great- 
est number of votes was to be president, and whoever had the next 



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86 OONSTITUnONAL LAW OP THE UOTTED STATES. 

The electors must prepare separate lists of all persons 
who receive any votes for either oflBce, must subscribe and 
certify the lists, and having sealed them must send them, 
addressed to the president of the senate, to the seat of 
the federal government. " The president of the senate 
shall, in the presence of the senate and the house of 
representatives, open all the certificates and the votes 
shall then be counted." A majority of the votes of all the 
electors is necessary to an election. If none of the can- 
didates for the presidency has received such a majority, 
then the house of representatives must elect one of the 
three candidates who received the greatest number of 
votes. In this case the house of representatives votes by 
states, and each state casts one vote. The ballot holds 
good if one or more members from two-thirds of the 
states be present. A majority of all the states is neces- 
sary to an election.^ If no vice-president has been elected, 
the senate may choose one of the two candidates who 
received the greatest number of votes. Each senator 
casts one vote. To make a ballot valid, the presence of 
two-thirds of the senators is required. For an election 
the majority of all the senators is necessary.* 

It is an undisputed fact that the twelfth amendment, 
which contains the provisions noted above, has become a 
mere empty form. The parties nominate their candidates 
in so-called national conventions, which have no legal ex- 
highest number was to be vioe-president, provided, in each case, that 
the candidate received a majority of all the votes cast. For the events 
of the election of 1800-1801, which led to the adoption of the twelfth 
amendment, see my Constitutional History, I., 168. 

I See my Constitutional History (II., 4) as to the one presidential 
election (that of J. Q. Adams) which took place under this constitu- 
tional provision. 

> Under this constitutional provision, R. M. Johnson was elected in 
1887. 



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THE FEDERAL OONSTmjTION. 87 

istence whatever, and the members of which are chosen 
without any legal control whatever. It has long been a 
subject of constant and loud complaint that not the mass 
of the people, but only the professional politicians, are 
represented in these conventions. In the interest of the 
managers, public opinion is often defied. The electors f 
are mere ornamental figure-heads, without any will of 
their own. The people take not the least interest as to 
who are made electors, for the persons designated are held 
to be in honor bound to vote for the party candidates 
nominated by the national convention. Since the intro- 
duction of these conventions, no elector has ever ventured 
to act as the constitution intended, in accordance with 
his own judgment.^ Not only in regard to the question 
as to which party shall carry the day, but also as to the 
persons chosen, the election of electors is the presidential 
election, and in ordinary conversation it is so called. The 
assembling and voting of the electoral college on the firet 
Wednesday in December is an empty formality, for the 
decision was made in the preceding November. The de- 
velopment of actual facts has made the constitution a dead 
letter on this point.^ The history of the presidential elec- 
tion of 1876-77 shows that even empty forms may become 

1 So, too, in former times, when the candidates were named by the 
party representatives in congress, the so-called " king caucus." 

> Should accident so shape events that the presidential candidate of 
the victorious party should die immediately before the meeting of the 
electoral college, then the United States would again have a president 
who was, not only in form, but in truth, elected by the electors. The 
effects that such an accident might produce are incalculable. The 
most substantial result would probably be the final success of the ef- 
forts to bring the constitution again into accord with facts, and to 
have the president and vice-president elected directly by the people. 
If Horace Greeley had been, not the defeated, but the victorious, can- 
didate, the constitution by his death in 1873 would have come to its 
rights. 



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88 CONSTITUTIONAL LAW OF THB UNTTBD STATES. 

of great significance. The after effects of the civil war 
came into play in a manner that threatened to be fatal 
In some of the former slave states (Florida, South Caro- 
lina' and Louisiana), both parties claimed the victory. If 
the electoral votes of all these states were given to the 
republicans, their candidate would be elected by a 
majority of one vote. But to whom did the constitution 
give the right to decide, if the legality of electoral votes 
was contested ? — or if in one state two sets of electors 
should each claim to be legally chosen? The clause of the 
constitution already cited offered no such unquestionable 
solution of the problem that the most different doctrines 
might not have been advanced from the general stand- 
point of principle and of part}' interests. There were no 
precedents to indicate so precisely any particular path 
that congress would have been obliged to proceed therein. 
The position which congress took in regard to the elect- 
oral vote of Missouri in 1821, and of Michigan in 1837, 
had been generally understood hitherto as involving a 
claim on its part to the right to decide the validity of an 
electoral vote sent into it; and the twenty-second joint 
rule, concerning the counting of electoral votes (which 
was, however, no longer in force in 1876), was also based 
on this assumption. In 1857 the president of the senate 
declared, after he had announced the election of Buchanan, 
that he did not feel authorized to decide whether Wis- 
consin had voted for Fremont. And in 1873 congress 
refused to count the electoral vote of Louisiana, on ac- 
count of fraud in the election. If the majority in 
both houses bad now taken the same position, the minor- 
ity would probably have been voted down by an appeal 
to precedent, and the affair would have been settled. But 
in the house of representatives the democrats, and in the 
senate the republicans, had a majority. It was therefore 



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THE FEDEEAX OONSTITUTION. 89 

to be expected with certainty that they would take 
directly opposite grounds. The doctrine that both houses 
should be regarded as one composite body, and that the 
majority of all of the votes should decide, found not the 
sUghtest support in the constitution. Against the -claim 
that congress was capable of deciding, the very impor- 
tant objection was raised, that the constitution provides 
only^that the certificates shall be opened and counted " in 
the presence of the senate and house of representatives." 
All the other provisions indicate, however, an intention 
to assign to the states the right and responsibility of tak- 
ing care that their electors shall be appointed in a con- 
stitutional and lawful manner, and their legal votes be 
properly conveyed to the president of the senate. The 
assertion of the republicans, that the decision belonged 
to this official, was equally untenable. Nowhere does the 
constitution empower him to count the votes. It declares 
simply that they "shall be counted," — a formula which 
forces us to suppose that, according to the views of the 
framers of the constitution, the question was one simply 
of addition. The claim of the democrats that the de- 
cisive vote must be accorded to the house of representa- 
tives, because eventually the election of the president 
was incumbent upon it, was not a bit better founded. It 
was evident that no amicable adjustment would be at- 
tained, if the decision of the question were delayed until 
the official counting of the electoral votes. In harmony 
with public opinion, the most thoughtful leaders of both 
parties wished, however, to avoid the great commotions 
which would have been inevitable if the question were 
not decided before the beginning of the new presidential 
period. Refuge was therefore taken in an expedient 
which certainly cannot be called unconstitutional, but 
must be described as extra-constitutional. It could scarcely 



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90 CONSTITUTIONAL LAW OF THE UNITED STATES. 

be resorted to again. A law was enacted, the essential 
provisions of which were as follows: If a state had sent 
in only one return of the electoral votes, it should not be 
rejected unless both houses should so decide; if two re-\ 
turns were sent in, these, together with all documents 
relating to them, should be referred to a commission of 
fifteen members ; each house named five members of this 
commission ; the law made four designated justices of the 
supreme court membera, and these four were to select 
another justice of the supreme court as the fifteenth 
member; the decision of this commission was to be final, 
unless set aside by a concurrent resolution of both houses; 
an appeal to the courts was not forbidden. The repub- 
lican candidate, Hayes, was installed in office under this 
law. The democrats accommodated themselves to cir- 
cumstances, but adhered to the view that Tilden was the 
legally elected president. The manifold efforts to render 
the recurrence of such an event impossible, by amending 
the constitution or enacting proper laws, have not thus 
far as yet led to the desired result. 

§ 26. The " Cabinet." The constitution knows noth- 
ing of a ** cabinet." Even if the word has become as 
thoroughly naturalized in the language of America as in 
European states, it is nevertheless, from a constitutional 
standpoint, an abuse. The constitution speaks only of 
" executive departments." It does not call the heads of 
them ministers. It generally gives them no titles. By 
statute, the name " secretary " is given them. Collect- 
ively, the secretaries have no constitutional existence 
whatever. One of the two clauses of the constitution in 
which they are mentioned shows, however, that the 
framers intended to give the president, in the secretaries, 
not only executive organs of his wiU, but also counselors 
upon whose official counsel he might rest his acts and 



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THE FEDERAL OONSTITUTIOH^. 91 

deeds — not legally, but morally and politically — when 
they were questioned by congress or the people. The 
president is authorized to " require the opinion in writing 
of the principal oflBcer in each of the executive depart- 
ments upon any subject relating to the duties of their 
respective oflloes." Art. IL, sec. 2, § 1. The express 
grant of such a power in the fundamental law of the state 
means something only when thus interpreted. It is, 
therefore, certainly not in opposition to the spirit of the 
constitution if the secretaries have been more and more 
fused into a ministry which, as a whole, advises the presi- 
dent, so that his personal policy expands into the policy 
of the administration. But even if this is regarded not 
simply as permissible, but also as self-evident and neces- 
sary, still the president can never shield himself by an 
appeal to a resolution of his so-called cabinet. It is not 
opposed to the spirit of the constitution, and it is an irre- 
pressible demand of modern government that, while the 
president resolves upon many things in his cabinet, he 
alone — not the cabinet — concludes, i, e.y decides. The 
political responsibility of each secretary extends beyond 
the limits of his own department, because he has volun- 
tarily incurred a moral responsibility for the general 
character of the president's policy by sitting as a mem- 
ber of the cabinet. But, as the president possesses the 
sole right of decision, he cannot throw upon his cabinet 
his legal or political responsibility. As he can seek sup- 
port in the opinion of each secretary about that oflBcial's 
own department, so he can seek it, by getting the opinion 
of all the secretaries together, about his general policy ; 
but he cannot put his cabinet in the place which the con- 
stitution reserves for him. Because his position in rela- 
tion to the cabinet is completely free, while as to the 
single minister it is limited by law, it is so much the more 



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92 OOKSTITUTIONAL LAW OF THE UNITED STATES. 

his duty to maintain with zealous care the constitutional 
relation — one which utterly excludes, according to its 
fundamental idea, a cabinet in the sense of those of 
tiie constitutional states of Europe. The constitution 
presupposes the existence of different " executive depart- 
ments." These were, however, first created by law, and 
by law the duties and rights of all the secretaries have 
been accurately defined. The president decides for him- 
self what he shall propose to his cabinet, how he shall 
count and weigh its votes, and to what degree he shall 
permit its counsels to influence his own decision. The 
secretaries are not (as executive oflBcers) unconditionally 
subject to the will of the president. They are actual 
heads of departments, and that not because it has so 
pleased the president, or by force of circumstances, but 
because the law has made them such. The cabinet is, so 
to speak, only an inner chamber of the administration. 
Circumstances and the character of the president may 
permit it to attain great practical importance, but an 
official action of any kind whatever by the cabinet, as a 
body, seems impossible, as long as the whole political 
structure of the executive power is not subjected to a 
change in its principles such as could be effected only by 
a constitutional amendment. The fundamental character 
of the present relation between the president and con- 
gress is that they stand side by side. A cabinet, in the 
European sense of the term, would be justified, and its 
existence rendered possible, only when, in place of this 
relation, a far more intimate and organic union of the 
executive and legislature had been brought about. The 
introduction of a parliamentary government must not be 
thought of. That would put the entire constitution upon 
perfectly new bases. The administration could not be 
conducted in the name of a president and und&r the name 



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THE FEDERAL CONSTITUTION. 93 

of a cabinet by a committee of the law-making power. 
As before stated, the executive must be an independent 
and co-ordinate factor of government, and the bearer of 
this executive power must be president, not merely in 
form but in fact. The constitution grants the senate a 
right of control over the appointment of the secretaries, 
inasmuch as it requires the senate's confirmation of the 
president's nominations. But it would be a grievous sin 
against the spirit of the constitution if the senate were to 
misuse this right of confirmation so as to compel the presi- 
dent to appoint a particular person, or even a man in 
political accord with the majority of the senate. The 
provisions of the constitution as to the time of election, 
the method thereof, and the terms of office, of president, 
senators and representatives, leave no doubt that the 
framers of the constitution did not consider political har- 
mony between the president and congress, or between 
the president and one of the two houses, as a matter of 
necessity. As the president is responsible for the admin- 
istration, it is self-evident that, so far as poUtical views 
do and must come into consideration in choosing the cab- 
inet, those of the president must prevail. In theoretical 
discussions, as well as in political struggles between the 
executive and the legislative powers, the view has always 
obtained that the constitution gave the president full 
liberty to remove the secretaries.* The political school 

1 The conflict between Andrew Johnson and congress led to the en- 
actment of the tenure-of-office act of March 3, 1867, which related to 
all the ciTil officials appointed by the president with the consent of 
the senate. But its main object was to compel the president to retain 
in office the secretaries who, in full accord with the majority of con- 
gress, were the bitterest opponents of his policy towards the rebel 
states. In my opinion, party passion alone dare dispute that coDgress, 
by the passage of this law, became guUty of the boldest usurpation 
and of grosB violation of the true intent of the constitution. Barely 



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94 CONSTITUTIONAL LAW OP THE UNITED STATES. 

which treats constitutional and parliamentary govern- 
ment as identical ideas will not find, in the constitution 
of the greatest and freest republic of all time, the slight- 
est support for its doctrine. But although a parliament- 
ary government is absolutely excluded by the funda- 
mental ideas of the constitution, yet for several years 
past the question has been discussed with increasing inter- 
est, whether the executive power, by law or constitutional 
amendment, should not be brought into closer communi- 
cation with the legislative, so that its measures and views 
could be openly and directly represented in both houses 
of congress by the secretary of the department concerned. 
That the development of afifairs is tending in this direc- 
tion, congress has frequently been compelled to acknowl- 
edge, at least indirectly, for the secretaries furnish it the 
materials for many of its legislative labors. Its commit- 
tees are not satisfied with the written information ob- 
tained, and so summon the secretaries, in order to obtain 
the desired information by oral discussions. Thus, finally, 

had Grant become president than the most objectionable provisions 
were repealed by a new act of April 5, 1869. This is so framed that 
it can scarcely be declared to be unconstitutional. But the tendency 
to extend the constitutional authority of the senate glimmers even 
. through this. Congress is unquestionably authorized to regulate by 
law the right of dismissal. Such a regulation in regard to adminis- 
trative officials is urgently needed. An unqualified right of dis- 
missal, conditioned only upon the senate's assent, should certainly not 
be accepted as such a legal regulation. As for the offices of a poUti- 
cal character, the nature of things forbids bringing them into such a 
scheme. If the constitution had intended to confer on the senate a 
right of control over dismissals from them, it would have declared it 
as expressly as it does the senate's control over appointments. But, 
as to all other offices, the welfare of the state demands a limitation 
of the arbitrary power of dismissal exercised by the constantly chang- 
ing political chiefs. The clause just mentioned of the act of April 5, 
1869, simply couples the arbitrary wiU of the president and the arbi- 
trary wiU of the senate. 



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THE FEDERAL CONSTITUTION. 95 

many proposed laws, which officially have an entirely dif- 
ferent paternity, are prepared in some bureau of the ad- 
ministration. But congress is too well aware of how very 
much the position of the executive would be strengthened, 
as against itself, if the secretaries received the right of 
debate in senate and house, and its tendency is too de- 
cided to elevate its own dignity and enlarge its own 
sphere of action at the cost of the executive, to permit 
those who perceive in such a change one of the most 
urgent and significant reforms to hope that their views 
may soon come to pass. But while the relation of the 
executive to the legislative power constitutes one of the 
greatest differences between the political institutions of 
the United States and those of all European constitutional 
nations, and probably will do so for a long time, the or- 
ganization of the " administration " in America, and of 
the " government " in Europe, is in the main similar, and 
will become more so with the progressive development of 
the United States. Originally there were only four de- 
partments: that of state (foreign affairs), of the treasury 
(finances), of war, and of justice (attorney-general). In 
1794 the postofBce department (postmaster-general) was 
added; in 1798 the navy department, and in 1849 the 
department of the interior.^ 

1 By act of May 15, 1868, an agricultural department was also cre- 
ated. But its head is only a '' commissioner." He is subject to none 
of the secretaries, but is not a member of the *' cabinet." 

By act of March 2, 1867, there was created within the department 
of the interior an "office of education," also administered by a 
"commissioner." The suggestion has already been made to change 
this bureau into an independent department, but there is no imme- 
diate prospect of this and possibly no necessity for it, since the school- 
system is a matter for the states. 

Only the most important points of the organization and work of 
the departments can be sketched here. 

The state department is not simply the ministry of foreign affairs. 
The secretary of state is also keeper of the great seal, and in the 



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96 OONSTITCnONAL LAW OF THE UNITED STATES. 

§ 27. The Federal Couets. The constitution estab- 
lishes only the supreme court of the United States and 
makes it the duty of congi-ess, according to the changing 
necessities of the times, to create and organize such in- 
ferior courts as it shall see proper. To be eligible for 
appointment to the oflBce of justice in the United States 

archives of this department the original records of the laws, of all 
resolutions of congress, etc., are preserved. The publication of the 
laws (in three newspapers), and the proclamation of an adoption of 
an amendment to the constitution, are among the secretary of state's 
functions. The fact deserves especial mention, that he is legaUy 
bound to present congress fuinually with a concise report of the 
changes made by other countries in their commercial and domestic 
policies. He has as aids a first and second assistant secretary of state, 
who are appointed by the president, subject to the consent of the 
senate. 

The treasury department more than any of the others was from 
the beginning brought into a legal relation with congress, independ- 
ent of the president. And as to this department it was admitted 
from the beginning that congress, in its legislation, could not do 
without executive co-operation. The very act of organization of 
September 2, 1789, provides: ** That it shall be the duty of the sec- 
retary of the treasury to digest and prepare plans for the improve- 
ment and management of the revenue, and for the support of the 
public credit, ... to make report, and give information, to 
either branch of the legislature in person or in writing (as he may 
be required) respecting all matters referred to him by the senate or 
house of representatives or which shall appertain to his oflSoe.*' 
Stats, at Large, L, 65, 66. An act of May 10, 1800, further pro- 
vides : " That it shall be the duty of the secretary of the treasury to 
digest, prepare and lay before congress, at the commencement of 
every session, a report on the subject of finance, containing estimates 
of the public revenue and public expenditures, and plans for improv- 
ing or increasing the revenues, from time to time, for the purpose of 
giving information to congress in adopting modes of raising the 
money requisite to meet the public expenditures." Ibid., II., 79, 80. 
Among the reports which the secretary must annually lay before 
congress are particularly to be mentioned those prepared by the 
bureau of statistics "on the statistics of commerce and navigation" 
(act of February 10, 1820, Ibid., III., 541), and " upon the condition 
of the agriculture, manufactures, domestic trade, currency and 



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THB FEDBEAL OONSTITUTION. 97 

supreme court requires no particular qualifications, ac- 
cording to the constitution. It provides only that the 
members of the supreme court shall be appointed by the 
president, with the advice and consent of the senate. In 
regard to the other federal judges, this is not expressly 
required, but the fact that congress has not reckoned 

banks of the several states and territories" (June 15, 1844, Ibid., V., 
719), and a summary of the exports and imports of the past fiscal 
year (July 1 to June 30). Every three months a report of the ex- 
penditures and revenue, and once a month a report of the condition 
of the treasury during the last week of the month, must be published 
(June 17, 1844, IbicL, V., 696). The accounts are examined by six 
auditors, above whom two comptroUers are placed in charge. The 
moneys are received and paid out by the treasurer. Payments are 
made on vouchers of the treasurer, countersigned by a comptroUer 
and entered by the registrar. A commissioner of customs has charge 
of the revenue arising from custom duties. The system of internal 
taxation is managed by a commissioner of internal revenue. Among 
the other officials of the department, the director of the mint and the 
comptroUer of the currency may be mentioned. 

The most important officers of the war department are the adju- 
tant-general, quartermaster-general, paymaster-general, commissary- 
general, surgeon-general, judge-advocate-general, chief of engineers 
and chief of ordnance. It is odd that the signal service also (chief 
signal officer) is placed under the war department, although its main 
object is to give information by telegram and by signals, for the ben- 
efit of agricultural and commercial interests, of the approach and 
force of storms, by means of observations taken at fixed meteorolog- 
ical stations. 

The department of justice consists of an attorney-general, solicitor- 
general, two assistant-attomeys-general, solicitor of the treasury, 
flolidtor of internal revenue, naval solicitor, and an examiner of 
claims for the state department. In. the separate judicial districts, 
legal matters are attended to by a district attorney. The executive 
officers are called marshals. (" The marshals and their deputies shall 
have, in each state, the same powers, in executing the laws of the 
United States, as the sheriffs and their deputies in such state may 
have, by law, inexecuting the laws thereof." Rev, Stat, sec. 788.) 

In respect to the postoffice department,* it need only be said that 
on account of the great number of postmasters necessarily appointed^ 
7 






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98 CONSTITUTIONAL LAW OF THB UNITED STATES. 

them among the " inferior oflBcers," the appointment of 
which it may commit "to the president alone, to the 
courts, or to the heads of departments," is unquestionably 
in harmony with the intent of the constitution. This 
appears, too, from the fact that none of the federal 
judges, without exception, according to the constitution, 
can be removed from office during good behavior.* The 

the department, under the *' spoils'* principle, has reached a com- 
manding importance in party politics, with which, so far as its legiti- 
mate duties are concerned, it should have no connection. 

The navy department is divided into eight " bureaus :** yards and 
docks; navigation (combined with a " hydrographic oflBlce"); ord- 
nance; provisions and clothing; medicine and surgery; equipment 
and recruiting ; construction and repair ; and steam engineering. The 
heads of the bureaus must be chosen from particular ranks of the 
officers of the navy. 

The duties of the interior department are the most extensive and 
comprise the most different objects : (1) census ; (2) public lands ; (3) In- 
dian affairs; (4) patents; (5) bureau of education; (6) the geological 
surveys ; (7) pensions, a branch which, since the civil war, and partic- 
ularly of late years, has attained vast importance by reason of sweep- 
ing legislation ; in the fiscal year 1888-84, 155,429,228 were paid out 
for pensions, more than one dollar per capita of the population; 
(8) preservation and distribution of the government's publications. 

The business of the department of agriculture is " to acquire and 
diffuse among the people of the United States useful information on 
subjects connected with agriculture in the most general and compre- 
hensive sense of that word, and to procure, propagate and distribute 
among the people new and valuable seeds and plants." Rev, Stat,, 
sec. 520. See W. Elmes, Executive Departments of the U. S. Oovem- 
ment, Washington, 1879. 

1 Territorial judges are not federal judges within the meaning of 
article in., section 1. Although the inferior federal courts within 
the states are first created by law, they are nevertheless " constitu- 
tional" courts, i. e., they are made by this article co-bearers of the 
judicial power of the United States. The territorial courts, on the 
other hand, are ** legislative," t. e., they were created by congress, 
not by virtue of this constitutional provision, but by virtue of its 
own general legislative power over the territories. American Insur- 
ance Co, V8» Canter, Peters, I., 646. I know of no judicial decision 



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THE FEDERAL OONSTITUTION. 99 

constitution does not fix the number of members of the 
United States supreme court. The great act of Septem- 
ber 24, 1789, which filled in the outline drawn by the 
constitution on this subject, provided that it should be 
composed of one chief justice and five associate justices. 
By the act of April 29, 1802, a sixth associate justice was 
created, and an act of March 3, 1837, increased their num- 
ber to the present figure of eight.^ To decide a case six 
justices must be present.* The act of 1789 created thir- 
teen district courts with one judge each and three circuit 
courts. The latter form the courts of first appeal. Their 
organization has been modified in the course of years. 
There are now nine circuits. One is assigned to each 
justice of the supreme court. Every circuit has, besides, 
its own circuit judge, and finally every district judge, 
within certain limitations, can exercise the office of cir- 
cuit judge.' Each one of these judges may, alone or in 
common with one of the two other judges, hold circuit 
court, and therefore in different parts of the same district 
there may be held simultaneously diflferent circuit courts. 

as to whether the remoyal of a federal judge by abolishing his office 
is constitutional. During the presidency of Jefferson, congress 
claimed this right, and some of the states have adopted the same 
coarse in regard to irremovable judges. 

1 It seems doubtful whether an attempt will be made to allay the 
increasing clamor concerning the extraordinary over-burdening of 
the supreme court, by a further increase of the number of asso- 
ciate justices. Manifold attempts have been made to find a good 
way out of the present wretched state of things, but more or less 
weighty objections have hitherto been made to each plan proposed* 

^The term of the supreme court does not correspond with the cal- 
endar year. Its commencement has been repeatedly changed. By 
act of July 28, 1866, it was fixed for the second Monday in October. 
OriginaUy the court was required to hold two sessions a year. Thia 
provision was repealed by act of April 29, 1803. These facts should 
be considered if mistakes in the year of a judicial decision are to be 
avdded. 

*Actof AprillO,18e9. 



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100 OONSTTTUTIONAL LAW OF THB mSTTTED STATES. 

The number of district judges has increased to one hun- 
dred and sixteen. By act of February 24, 1865, the court 
of claims was created.^ 



RIGHTS, PRTVTLBGES AND LIMrTATIONS OF THE FEDERAL 
POWERS AND OF THE SEPARATE MEMBERS THEREOF. 

§ 28. Congress. The constitution expressly grants to 
both houses of congress the autonomy which in all con- 
stitutional states is deemed a necessary prerequisite of 
legislative bodies. Before all, ^' each house shall be the 
judge [of the validity] of the elections, returns and qual- 
ifications of its own members " (art. I., sec. 5, § 1).* It 

^The organization of the court of claims was altered by act of 
March 8, 1868. It is at present composed of a chief justice and four 
associate judges, but only two are necessary to decide a case. The 
court sits in V^ashington. The annual session begins on the first 
Monday in December and continues till the cases before the court are 
disposed of. The foUowing two provisions contain the most essen- 
tial features in regard to its authority : It is empowered *' to hear 
and determine all claims founded upon any law of congress, or upon 
any regulation of an executive department, or upon any contract, 
expressed or implied, with the government of the United States, and 
aU claims which may be referred to it by either house of congress," 
and '* aU set-offs, counter-claims for damages, whether liquidated or 
unliquidated, or other demands whatsoever, on the part of the gov- 
ernment of the United States against any person making claim 
against the government in said court." Although the court must in 
aU these cases *' decide," yet it has been claimed in the house of rep- 
resentatives that congress could set aside these decisions, inasmudi 
as it could refuse to make appropriations to pay the judgments 
against the United States. The house adopted the motion of Waah- 
bume, of Illinois, who supported this claim, but, neither from the 
motion itself, nor from the brief debates, does it appear whether the 
house pledged itself to this undoubtedly untenable view. See Cong, 
Globe, 2d sess. 88th Cong., 806. AppeaJs from the court of claims go 
to the supreme court See W. A. Richardson, History, JtarisdieUon 
and PrcLctice of the Court of Claims, Washington, 1882. 

2 The ''returns" or "certificates of election" are regarded as 



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THE FEDERAL CONSTITUTION. 101 

is the province of each house to fix its own order of busi- 
ness, but the constitution makes a majority of all the 
members elected necessary to do any business. A less 
number may adjourn from day to day. In order that 
their labors may not be brought to a standstill, either by 
indifference or evil intent, the appearance of the absent 
members can be enforced in the manner provided and 
under penalty of the punishments imposed by the re- 
spective houses. The power to fix the order of business 
naturally implies the power to invest the chairman with 
the necessary disciplinary power to maintain order dur- 
ing the sessions. When it is further provided that each 
house may " punish its members for disorderly conduct," 
it is of course evident that something more is intended 
and a wider authority bestowed. This becomes entirely 
certain, when finally the right is expressly given them to 

"prima faci£ eTidence " of a legal election, and a further inyestigfr- 
tion takes place, as a rule, only when the opposmg candidate contests 
the election. If a seat in the house of representatives be contested, 
the contestant must notify his opponent within a fixed period of time, 
and inform him in the way prescribed by law that, and upon what 
grounds, he intends to make the contest. The two parties must then 
themselves take measures to get the testimony. Ninety days are 
granted them within which to do so. The depositions of the wit- 
nesses are sent to the hou«e. See, more fully. Rev. Stat, sees. 106- 
130. See, also, F. C. Brightly, A Collection of Leading Cases in the 
Law of Elections in the United States, Phila., 1871 ; D. A. McKnight, 
Electoral System of the United States, PhUa., 1878; D. C. McMillan, 
Elective Franchise in the United States, N. Y., 1878 ; G. W. McCrary, 
American Law of Elections, 2d ed., Chicago, 1880: F. Giauque, 
United States Election and Naturalization Laws, Gin., 1880. 

The idea of "qualifications" was considerably enlarged by the 
civil war and by the third section of the fourteenth amendment, 
abready cited. By the act of July 2, 1862, all federal officials were 
obliged to swear that they had in no manner whatever voluntarily 
taken part in the rebellion. This " test oath " was repealed in May, 
1884. 



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102 C0N8TITDTI0NAL LAW OF THB UNITED STATES. 

"expel a member" by a two-thirds vote (art I., sec. 5, 
§ 2). In times of very great excitement, it has neverthe- 
less been asserted that all these provisions give each house 
only a power over its members which is disciplinary in 
the strict sense of the word, and therefore can be put in 
force only as to improper acts committed during the ses- 
sions.' Since there has been repeated occasion to take 
steps against members of each house under each of these 
two clauses, and since the majority has never taken this 
standpoint, it may now be regarded as finally settled that 
that interpretation is correct which is the broader, and 
at the same time, according to ordinary speech, unques- 
tionably the more natural one. Both houses of congress 
must have been granted every power needed to guard 
themselves and their members against any impropriety 
on the part of a member and to preserve their dignity 
and reputation among the people. It is wholly for them 
to say what conduct they are to regard as dishonorable 
enough to require expulsion.* An appeal from their de- 
cision lies only to the court of public opinion, a court 
which brings in its verdict at the elections. What other 
punishments the houses may impose upon members is, 
on the other hand, a question which has never had an 
exact and unquestioned answer and never can have. Al- 
though the power is in form unconditional, it was cer- 
tainly not intended to be unlimited. Custom has confined 
all punishments imposed to those not inconsistent with 
personal dignity, and this corresponds to the intention of 
the constitution. 

^See my Constitutional History, V., 824. 

2 The misconduct need not be legally punishable. See the case of 
Senator W^. Blount, in 1797. Story, § 838. Nor need it have been 
oommitted during the sesiuon of congress or at the seat of govern- 
ment. 



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THB FEDERAL 0ON8TITUTION. 103 

The congressional power of punishment is not limited 
to members of the two houses, although the constitution 
contains no further provision on this point. The exten- 
sion of the power rests upon the fact that both houses 
exercise judicial functions in certain cases, and by the 
common law every court has the power of punishment, 
in order to protect itself against insult, contempt and dis- 
obedience. The supreme court decided, in KUboum vs. 
TAompeon (103 U. S., 168; Otto, XIII.), that the lower 
house may punish a contumacious witness whom it has 
summoned in reference to an impeachment or other mat- 
ter which falls under one of the provisions of the consti- 
tution.^ On the other hand, it has decided that the 
constitution granted neither house the right of punish- 
ment simply " for contempt." Whether the right existed 
in other cases than those enumerated, it did not care to 
decide on this occasion, but it laid down the general prin- 
ciple that it could never exist when, as in the case before 
it, the house had overstepped its constitutional jurisdic- 
tion.* The extensive disciplinary and penal powers of 

1 This, of coarse, applies also to the senate. 

3 Kilboum had been committed to prison because he refused to pro- 
duce his business account-books and correspondence. 

As important as this decision is, it does not clear up aU doubt on 
this question. And the question is of great importance in both prin- 
ciple and practice. Thus it leaves it doubtful whether the house of 
representatives of 1882 was authorized to have Samuel Houston 
arrested by its sergeant-at-arms, brought before its bar and censured, 
because he had beaten Stanberry, of Ohio, on the public street, on 
account of a speech delivered by Stanberry in the house. See Ben- 
ton's Abridgment of the Debates of Congress, II., pp. 644-660 and 668- 
689. In a much older decision (1821), in Anderson vs, Dunn (Wheaton, 
VL, 204-285), the supreme court has undoubtedly recognized the right 
of the house of representatives to punish a *' breach of its privileges'* 
by arrest, censure and imprisonment, but not beyond the close of the 
session, and if the beating and unjustifiable imprisonment of the 



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104 OONSnTDTIOKAL LAW OP THE UNITED STATES. 

both houses over their respective members are counter- 
balanced by the far-reaching immunity granted the mem- 
bers as to all other courts and public authorities by the 
next section, the sixth. The clauses in point are : The 
senators and representatives "shall in all cases be priv- 
ileged from arrest" — treason, felony and breach of the 
peace excepted — "during their attendance at the session 
of their respective houses," and they shall not be called 
to account at any place whatsoever " for any speech or 
debate in either house." The word session is to be under- 
stood as meaning the whole session, and it includes the 
time ^^eundo et ad propria redeundoP ^ So, too, the word 
arrest must not be interpreted here in its strictest sense. 
Summonses to appear as a witness or juror, under pen- 
alty, are not regarded as arrests. Again, the second 
clause is not, according to one view of it, to be inter- 
preted in its strict verbal sense. The immunity is not 
limited to the speeches and debates. It extends also to 
the votes cast, the reports made, and in general to every 
official act as a member of one of the two houses. 

In the case already cited of Kilboum vs. Thompson^ 
the supreme court dismissed the suit against the members 
of the committee which had issued the summons and de- 
clared the sergeant-at-arms alone liable. It is not, there- 
fore, entirely without doubt how the clause is to be 
interpreted from the other standpoint. It is admitted 
that the privilege relates only to what is said or done 

sergeant-at-arms is such a breach of its privileges, then the beating 
of a member is naturally much more so. But in the more recent de- 
cision the supreme court seems no longer to rely upon the reasoning 
on which it based its decision in the earlier case. 

1 *' Except treason, felony and breach of the peace." This clause 
is so construed that aU " indictable offenses," as weU as constructive 
breaches of the peace, are included, and consequently the protection 
against arrest extends only to civil actions. 



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THE FEDERAL OONSTITUTION. 105 

strictissime in the fulfillment of oflScial duties. It is ques- 
tionable, however, how this can be reconciled with the 
publication of speeches, reports, etc. The oflBcial pub- 
lications, directed by either house or by the law, are now 
protected, even in England, against any claim for dam- 
ages. But in the United States it is commonly assumed 
that a member of congress is at liberty to send to his con- 
stituents in printed form whatever he has said in congress, 
without exposing himself thereby to suit for slander, libel, 
etc. There are, nevertheless, older judicial decisions hold- 
ing a directly opposite view. The question has not yet 
been brought to a definite issue by a decision of the su- 
preme court. 

Congressmen enjoy no further privileges. The constitu- 
tion provides, however, that a seat in the federal legisla- 
ture shall not be an unpaid honorary office, but that the 
senators and representatives shall receive compensation 
for their services. The amount is fixed by law, and it is 
paid out of the treasury of the United States. By the 
aot of March 3, 1873, this salary of congressmen and 
territorial delegates was raised to $7,500 per annum, be- 
sides actual traveling expenses once each session on the 
most direct route to the seat of government. Public 
opinion condemned this law with such emphasis that it 
was repealed January 22, 1874, and the act of July 28, 
1866, was again put in force. Under it the salary is $5,000 
per annum, with mileage at twenty cents per mile for 
each journey to and from the regular sessions. 

The privileges and rights granted congressmen, as well 
as the legal limitations to which they are subjected, have 
been regulated with a view to their office as law-makers. 
Their peculiar position is due to the fact that the interests 
of the state require that their independence be assured, 
so far as law can assure it. In fulfilling their duties to 



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106 CX)N8TITDTIONAL LAW OF THB UNITED STATES. 

the best of their knowledge and conscience, they should 
not be influenced by fear of personal unpleasantness, in- 
jury or wrong resulting therefrom. Nor should they be 
exposed to the temptation of being turned away from the 
right path by the prospect of personal gain. Art. I., sec. 
6, § 2, prohibits a senator or representative from being 
appointed to any federal oflBce which was created, or the 
emoluments of which were increased, during his term 
of oflBce. It is further provided, that no officer of the 
United States can be a member of either house of con- 
gress as long as he retains his office. A member of con- 
gress by accepting any other federal office thereby for- 
feits his seat, and although his re-election is not forbidden, 
he cannot take his seat again unless, prior thereto, he re- 
signs his other office. As the members of congress fill a 
federal office in the broader sense of the word, they come 
under the provision in art. I., sec. 9, § 7, according to 
which no federal officer, without permission of congress, 
can accept from king, prince, or foreign state any " pres- 
ent, emolument, office or title of any kind whatever." 

§ 29. The President. In regard to his personal rights, 
the president occupies no peculiap position. The constitu- 
tion (art. II., sec. 1, § 6) grants him a salary, with the 
proviso that it is not to be increased or diminished during 
his term of office. It also forbids his receiving any other 
income from the United States, or from any of the states. 
The salary, originally fixed at $25,000 per annum, was 
doubled by the act of March 3, 1873. 

§ 30. The Judges. The judges also at stated times 
draw salaries, which cannot be decreased as long as they 
are in office (art. III., sec. 1).^ No personal privileges are 

iThe salary of the chief justice of the supreme court is |10,500; 
that of the associate justices is |10,000 ; that of the circuit judges 
$6,000 ; that of the district judges from |3,500 to $4,600 ; and that of 



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THE FEDERAL CONSTITUTION. 107 

granted them by the constitution, and they are subject to 
no peculiar legal limitations. 

TEDE FUNCTIONS OF THE GOVERNMENTAL FACTORS. 

In order to avoid repetitions, otherwise inevitable, in a 
discussion of the powers of the governmental factors, 
their functions will be treated in this section principally 
on their formal side. Nothing will be said, therefore, 
about the judiciary, since the constitution contains no 
provisions of this sort in regard to it. A description of 
the entire judicial procedure is self-evidently out of place 
here. As for the executive functions, only those should 
and need be touched upon which present peculiarities of 
some kind or other. 

§ 81. The General Legislative Functions of Con- 
QBE8S. The authority of either house of congress to 
establish its order of business is not unlimited. The con- 
stitution contains several provisions as to this, some of 
which have already been mentioned in another connec- 

the judges of the court of claims $4,500. It is often said that these 
salaries are too low, because many lawyers are able to earn much 
more and there is therefore danger that the jurists beet fitted by knowl- 
edge and character wiU no longer be willing to go upon the bench. 
It has, indeed, already happened that the enormous fees the large 
railroad corporations pay their attorneys have proved more attractive 
than the honors of the judiciary, but the latter are stiU prized so 
highly that finding fit men has, hitherto at least, been easy. It must, 
however, be admitted that in general the salaries of officials in the 
United States, especially of the higher grades, are too low. But 
raising them might have bad results as long as the principle of ''ro- 
tation in office *' is not given up. Only when an end is put to this 
foUy can the most vigorous talents be expected to devote themselvea 
gladly to the service of the state. Then they vrill not long be de- 
terred by the low salary, especially if a system of pensions is intro- 
duced. Not only might this then be done without danger, but it 
would be an advantage from every point of view. 



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108 OONSTITXmONAL LAW OF THB UNITED STATES. 

tion. There remains to be added that each house must 
keep a journal of its proceedings, in which the yeas and 
nays of a vote must be entered, whenever this is de- 
manded by one-fifth of the members present. The jour- 
nal must be published from time to time, but it is within 
the discretion of the two houses to suppress those parts 
which they think it necessary to keep secret (art. I., sec. 5, 
§ 3). It is evident, therefore, that it is not an oversight 
that the constitution contains no express provisions as to 
whether the proceedings of congress shall be public or 
secret. Evidently publicity was intended to be the rule; 
but it was also intended to leave it wholly to the judg- 
ment of congress in what cases and upon what grounds 
an exception should be made. This corresponds, too, 
with actual custom. Till February 20, 1794, the senate, 
indeed, always met with closed doors, but since then the 
only permanent exceptions to the rule of publicity are 
the executive sessions, in which the senate performs no 
legislative duties, but acts as the adviser and controller 
of the executive. Moreover the obligation of secrecy as 
to occurrences in the executive sessions is frequently re- 
moved. The legislative functions, as far as the ordinary 
work of the two houses is concerned, are discharged 
coram publico. When the slavery question frequently 
brought passions to the boiling point, the " clearing of 
the galleries " was often demanded, but this was intended 
simply to secure protection against improper demonstra- 
tions of the spectators and was never regarded as a de- 
nial of publicity. 

, § 32. The Process of Legislation. The legislative 
initiative, with a single exception (in favor of the house), 
which will be mentioned later on, belongs in an entirely 
equal degree to the two houses of congress. The consti- 
tution prescribes no forms which are to be observed in 



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THE FEDE&A.L CONSTITUTION. 109 

initiating legislation. Their establishment is entirely a 
matter of the rules adopted by either house. According 
to these, the preparation of a bill is mainly incumbent 
upon the standing committees, which, in the house of rep- 
resentatives, are appointed by the speaker, and in the sen- 
ate are elected by the majority.^ Special committees may 

1 In the 48th congress (188S-85), the senate had twenty-nine and the 
house forty-seven standing committees. For the introduction of a 
biU the oonmiittees require the permission of the respective house. 
This is, however, usually given either when the committee is ap- 
pointed or by a permanent provision of the rules. The house must 
likewise be asked whether it wiU receive the report of the committee. 
As a rule the question is not actually put. An afifirmative answer is 
assumed if no objection be made. Many of the customary formali- 
ties of the English parliament have been set aside. Minority reports 
are received as a matter of fact, although really, as a matter of parlia- 
mentary law, only the committee as such can report, and, of course, 
in a strict sense, only one report is possible — that of the majority. 
It is odd that the committees are bound by their decisions and cannot 
reconsider them. Cushing's Law and Practice of Legislative Asseni- 
hlieSy % 1915. The committees need an especial authorization in order 
'* to send for persons, papers and records ; " but the examination of 
voluntary witnesses may take place without such authority. In ex- 
ceptional cases the committees are authorized, that is directed, to 
continue their labors after the close of the session. In the house of 
representatives, in the " morning hour " of Tuesday, Wednesday and 
Thursday, that is, after the reading of the journal, the standing com- 
mittees are called upon by the speaker, in regular order, to present 
their reports and to make motions. An hour^s time is given the 
maker of the report. He usually gives up a greater or less portion 
of this short time to general debate. The speaker, however, recog- 
nizes only those persons who have previously come to a private un- 
derstanding with the maker of the report, and these only upon their 
promise to limit their remarks to a certain number of minutes. Im- 
mediately before the expiration of the hour the maker of the report 
demands the '* previous question,** that is, moves to dose the debate, 
and this demand is generaUy granted, because it is to everybody's 
interest that the work of legislation be done in the speediest manner. 
For each one of them is particularly interested in some other bill, and 
the whole number of the bills is always so enormous that only a small 



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110 CONSTITUTIONAL LAW OF THE UNITED STATES. 

also be appointed, and each and every individual mem- 
ber, with the consent of his house, may introduce a bill' 
What further treatment a bill once introduced experi- 
ences, — when it is taken up for discussion; whether a 

fraction of them can ever be disposed of. The great majority are 
buried forever by reference to some committees, for the committees 
wiU not, or cannot, ever report upon them. When the previous ques- 
tion is carried no more amendments are in order, and the maker of 
the report has another hour for the discussion of the measure before 
the final vote takes place. An immense number of laws are thus 
passed in the house in the course of two hours. When a committee 
is called by the speaker, only the morning hours of two successive 
days belong to it. If, however, the morning hours of the second day 
have elapsed without arriving at a conclusion upon the biU in liand, 
then it becomes *' unfinished business," and as such is at the head of 
the order of the day for the morning hours until it is disposed of. 
The four committees on printing, elections, ways and means and 
appropriations hold a privileged position. The remaining standing 
committees must be content with the time that is granted them by 
these four. Senator Hoar calculates that, on an average, not more 
than two hours is accorded each of them during an entire session. 
Tills fact is the more significant, since most of the bills are really dis- 
cussed only in committee, and the committees have the right to meet 
with closed doors. To mention in the house any occurrence in the 
committee room, except upon the basis of the official report, makes 
the offender guilty of a " breach of privilege." It is, moreover, quite 
usual for the committees to examine experts, and as these are, for the 
most part, specially interested, the laws are based to a large extent 
upon ex parte testimony, while the whole body of legislation is far 
removed from anything like uniformity. It is only in regard to the 
appropriation biUs that the house of representatives has retained the 
character of an advisory body. The appropriations are discussed in 
oonmdittee of the whole ; the previous question cannot be moved ; and 
the right to propose amendments is not only formally, but also actu- 
ally, unlimited. See G. F. Hoar, The Conduct of Busineaa in Con- 
gress, in the North American Review, February, 1879, p. 118 et seq, 

1 A standing opportunity to do so is presented in the morning hour 
of Monday. For then the states and territories are called in regular 
order for this purpose. It ia also to be observed that on Mondays, 
after the morning hours, and on the last ten days of the session, the 



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THE FEDERAL OOKSTITUTION. Ill 

committee is to pass upon it; whether it is subjected to 
preliminary consideration in the so-called committee of 
the whole, etc., — all this is regulated by the general pro- 
visions of the rules or decided by resolution.^ When a 
bill has passed, it is sent over to the other house with a 
message to that eflFect.* Whether the other house will 
consider and pass upon it is entirely at its pleasure. If it 

*' sospension of the rules " may be moved in order to take up and pass 
any biU. To pass the motion to suspend the rules a two-thirds mar 
jority is necessary. If passed, there can be no debate on the biU, and 
no amendment offered. Consequently, so far as the house of repre- 
sentatives is concerned, a biU may become a law by one vote, without 
any discussion and without the possibility of any changes whatever. 
At every session a vast number of bills are actuaUy passed in this 
manner. 

1 The committee of the whole is actually the whole house (or sen- 
ate). In the senate it is called the quasi-committee of the whole. In 
passing upon a measure it is subject to the same rules as prevail in 
the house. In truth the committee of the whole is not a committee 
at aU, but the house itself transacting business in a peculiar, and in 
fact a simpler and freer, way. Its function corresponds with that of 
the committees in being simply a preparatory one. Its conclusions 
are only recommendations to the house, without any obligation what- 
ever. The most significant advantage of the arrangement is the 
greater freedom and ezhaustiveness of the discussions, as each mem- 
ber may speak as often as he chooses. The committee of the whole 
can consider only definite resolutions. In sessions of the ** committee 
of the whole house on the state of the Union," every member may 
speak on any question he desires. The speaker does not preside over 
the conmiittee of the whole. Any member whom the house may ap- 
point takes the chair. In the house of representatives, since 1841, no 
speech is permitted to occupy more than one hour. At the expira- 
tion of the last minute the speaker's gavel stops the orator short, even 
in the middle of a sentence. By calling for the previous ques- 
tion, debate can not only be closed at any moment, but entirely 
prevented. Debate on the motion for the previous question is not , 
aUowed. 

SThat a simple majority of the members voting suffices to pass a 
bill is not expressly declared in the constitution, but it is regarded as 
self-evident, and it follows, too, from the exceptional provisions men- 
tioned further on. 



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112 CONSTirunONAL LAW OP THE UNITED STATES. 

passes it without amendment, the bill goes to the presi- 
dent for his approval If, on the contrary, it passes it 
with amendments, the bill is retamed to the other house, 
which, when it again considers the matter, either concurs 
in the amendments or refuses to do so, or offers new 
amendments of its own. Thus, a bill may be bandied 
from one house to the other as long as there is any hope 
of its passage. If that cannot be directly attained and 
yet seems attainable, then one or the other house proposes 
the appointment of a conference committee. If the other 
house agrees to this and the conference committee arrives 
at any agreement, its report is, as a rule, concurred in by 
both houses, although, of course, neither is obliged to do so. 
If the conference committee does not come to an agree- 
ment, the usual process of bandying the bill back and 
forth can be taken up where it was interrupted, or a sec- 
ond or third conference committee may be appointed, 
until one of the houses in some way or other declares 
that it will no longer protract the discussion. 

§ 33. The Co-operation of the President in Legisla- 
tion. A bill passed by both houses of congress becomes 
law as a rule by the approval of the president. Yet this 
right of approval must not be considered as a part of the 
legislative power, for the constitution expressly declares 
that " all " the legislative authority granted shall vest in 
congress. The co-operation of the president in the mat- 
ter of legislation is intended only as a control. Congress 
alone is the author of the laws. If the president has ob- 
jections to raise against the legislative conclusions of 
congress, he is in duty bound to submit the latter for 
reconsideration. Then, in order to become laws, they 
must receive a two-thirds majority in each house.* It is, 

1 The phrase used in the constitution admits of various interpreta- 
tions, as it is not very precise. Congress has adopted the view that 
a two-thirds majority of those voting, not of aU the members elected, 



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THE FEDERAL CONSTITUTION. 113 

therefore, anquestionably an abuse of language that the 
refusal to approve a bill should be called a veto, not only 
in ordinary speech, but also in official terminology. The 
word is not to be found in the constitution. It is bor- 
rowed from a state of affairs essentially different and 
does not harmonize with the constitutional nature of the 
president's cooperation in legislation. The president has 
no right to forbid congress to do anything. He can only 
state that he does not agree with it and declare his rea- 
sons therefor. Thereupon the constitution subjects the 
exercise of the legislative powers of congress in the par- 
ticular case to more stringent conditions.* 

is required. Since a simple majority is sufficient to transact business, 
under certain circumstances a bill may be made a law over the objec- 
tions of the president by the majority of each house. 

1 On the other hand it is entirely within the discretion of the pres- 
ident as to what reasons he shall regard as sufficient in order to make 
use of this power. The exercise of it has led to many violent coUis- 
ions between the executive and the legislative departments. In these 
conflicts the attempt has been made with much acumen to limit the 
president's freedom of action by invoking all sorts of doctrines. It 
is true that some of them have great political weight, but they lack 
a firm constitutional basis. During the ''forties" the whigs agi- 
tated the entire repeal of the veto power, but only to their own hurt. 
Very recently an agitation has begun in the opposite direction. The 
president can refuse to approve only the whole bill, even if he takes 
exception to but one or two points in it. It is now proposed to give 
him, so far as the appropriation bills are concerned, the right to re- 
turn individual appropriations for reconsideration and to give the 
others the force of law by approving them. It can scarcely be 
doubted that this decisive reform will surely be enacted sooner or 
later, but the battle for it wiU certainly be severe and probably be 
long. The president must state his objections in writing and return 
the bill to the house where it originated. The new vote upon it must 
be by roll-call. The vote of each member must be entered on the 
journal. The same rules apply in the other house, to which the bill 
and the president's objections are sent, if the first house has passed 
the bill again by a two-thirds majority. If the president does not. 
8 



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114 CONSTITUTIONAL LAW OF THE UNITED STATES. 

§ 34. The President. The president's direct constitu- 
tional influence upon legislation is not limited to his co- 
operation and control, as sketched in the last paragraph. 
The constitution directs him from time to time to give 
congress " information of the state of the Union," and it 
is expressly made his duty to " recommend . . . such 
measures as he shall judge necessary and expedient" 
(art. II., sec. 3). In the legislative initiative, as well as in 
legislation, congress is subject in a certain way to the 
control of the president, but this control, so far as the 
initiative is concerned, is naturally positive, not negative. 
Even if he cannot himself submit any bills, he can nev- 
ertheless exert a pressure upon congress to prevent its 
being guilty of sins of omission, for in his messages he 
calls the attention of the whole people to those matters 
which require the enactment of laws, or at least make 
new laws seem desirable. His reports " of the state of the 
Union " appear in the form of the so-called messages. The 
annual messages are sent to congress at the beginning of 
the annual session. They discuss all important domestic 
and foreign relations pretty thoroughly, and are therefore 
always much more comprehensive than the ordinary crown 
speeches in the monarchies of Europe. . Accompanying 
the messages are the exhaustive reports by the secretaries 
about their respective departments. The messages and 
reports are called the executive documents, and are cited 

sign a biU or return it with his objections within ten days (Sundays 
excepted) after it has been sent to him, it becomes a law without his 
approval, unless congress has adjourned within the ten days (art. I., 
sec. 7, § 2). Thus a biU may become a law, even though the president 
has refrained from expressing any opinion about it, and it may also 
not become a law, because he has expressed no opinion. Every other 
order, resolution, or vote for which the concurrence of the two houses 
is necessary must likewise be presented to the president and is subject 
to the same provisions as the bills. The only exceptions are the reso- 
lutions to adjourn (art. I., sec. 7, § 8). 



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THE FEDERAL 00N8TITUTI0N. 115 

under this title in scientific and political literature. This 
designation embraces also the special messages, which, as 
their name implies, are issued on special occasions and 
relate to special business. The obligation to report to 
congress upon the state of the Union naturally does not 
exclude the president's right to express himself publicly 
in other ways and thus to address the whole people. But 
this happens very seldom, and — in accordance with un- 
broken custom — only in two distinct ways: by the inau- 
gural address and by proclamations. The oath already 
mentioned which the president must take upon assuming 
his office is taken publicly upon the vast open portico of 
the capitol at Washington, and thereupon the president 
delivers his so-called inaugural address, in which he un- 
folds to the people the programme of his administration.* 
The occurrence of certain events, such as the admission 
of new states, is announced to the people, in accordance 
with legal precedents, by proclamation. The president 
also issues proclamations upon his own initiative. In 
these his character as the bearer of the executive power 
is more clearly and distinctly shown than in the messages 
or in the inaugural address. Many presidents have never 
had the opportunity of addressing the people in this most 
solemn and weighty manner, because the occasion must 
be highly significant and of a very special character to 
justify the use of this means or to make it appear neces- 
sary.^ 

1 Washington, upon his retirement to private life, delivered a fare- 
well address to the people, which to the present day is regarded by 
the American nation as among the greatest and most valuable rec- 
ords of its history. Jackson is the only president who followed this 
example. His opponents took bitter exception to his venturing in 
this way to range himself with the father of his country. 

2 By far the most important proclamations which the history of the 
United States has to show are Lincoln*s emancipation proclamations 
of September 23, 1862, and January 1, 1863. 



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116 OONSTITDTIONAL LAW OF THE UIHTED STATES. 

THE POWERS OF CONGRESS. 

§ 35. General Pmnoiples. To rightly understand not 
only the powers of congress, but also those of the other 
factors of government, it is necessary, in considering in- 
dividual instances, to keep constantly in view the general 
principles concerned and the fundamental doctrines of 
constitutional law. 

The constitution does not define the powers of the 
factors of the government. It simply enumerates them.* 
Since in their exercise they must necessarily be made 
definite, it devolves upon the governmental factors them- 
selves to decide upon the limits of their own capacity. 
Thus the courts, and in the last instance the federal su- 
preme court, under the principles and limitations already 
laid down, must be the controlling power in the decision. 
To define these powers correctly it must not be lost sight 
of that all the powers spring from one idea and are in- 
tended to reach one goal. They must therefore always 
be considered as a whole.^ It follows from these premi- 
ses, not only that besides the powers expressly granted 
there are others which are implied by those granted and 
result from them (implied and resulting powers), but that 
the second kind of powers is not distinguished in sub- 
stance from the first. If the doctrine that the powers 
of the government are enumerated must be understood 
to mean that the expressly granted powers must be liter- 
ally interpreted and that there can be no unenumerated 
power, then the federal government would be deprived 
of the possibility of existence.' 

If the constitution can be interpreted in two ways, one 
of which assures the fulfillment of the object of its exist- 

1 Oibbona vs. Ogden, Wheaton, IX., 1. 

2 The Legal Tender Cases, Wallace, XIL, 532. 
•Ibid., 646. 



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THE FEDEBAL OONSTmjTION. 117 

ence, while the other tends to render it nugatory, there 
can be no doubt which is the right rendering. 

§ 36. Taxation, Finance and the Public Debt. The 
financial distress which ever threatened more and more 
to be fatal to the republic, under the articles of confed- 
eration, deserves to be thanked, in the first instance, for 
the reorganization of the Union. The constitution there- 
fore naturally takes ample care that the federal govern- 
ment shall not want the necessary material means to 
fulfill the object of the federation. Congress is em- 
powered "to lay and collect taxes, duties, imposts and 
excises, to pay the debts and provide for the common de- 
fense and general welfare of the United States, but all 
duties, imposts and excises shall be uniform throughout 
the United States " (art. L, sec. 8, § 1). Congress may 
levy imposts of any kind, and as they are collected di- 
rectly from the individual by organs of the federal gov- 
ernment, without the mediation of the states, it can 
constantly satisfy the needs of the nation in their fullest 
range, for the amount of every impost, which congress is 
permitted to make, is left wholly to its own discretion. 
Political and economical considerations and regard for 
business interests set certain bounds to it in this re- 
spect, but its constitutional authority is unlimited.^ But 
still the power of congress to levy taxes is not entirely 
unconditioned. In fact bounds are set to it in various 
directions by several express provisions of the consti- 

1 The Union is divided into ooUection districts. The president fixes 
their number and boundaries. In every district there is a collector 
who is allowed a number of assistants (deputy collectors). After a 
reduction earnestly undertaken, September 5, 1883» the number of 
revenue districts was eighty-four. The heads of the custom-houses 
are Called collectors of customs. 

See McCuUoch V8, Maryland, Wheaton, IV., 816, 428. See, also, 
Veazie Bank V8, Fenno, Wallace, Vin., 548. 



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118 OONSTITDTIONAL LAW OP THE UNITED STATES. 

tution. "All duties, imposts and excises shall be uni- 
form throughout the United States." ^ Moreover, direct 
taxes must be levied in proportion to the population of 
the states (art. I., sec. 2, § 3) and the census is made the 
basis (art. I., sec. 2, § 4).- Finallj^ "no tax or duty shall 
be laid on articles exported from any state." ' 

Further restrictions of the right of taxation result from 
the fact that congress can exercise it only for the fulfill- 
ment of the objects enumerated. The expression " gen- 
eral welfare " is indeed so comprehensive and vague that 
the discretion of congress is given the widest play. But 
however much this expression may be stretched, the 
mention of the three general purposes makes it certain 
that, for other purposes, no federal taxes can be levied. 
There are certain bounds, more or less clearly marked, 
within which the right of taxation unquestionably can- 

1 In Loughborotigh va, Blake, Wheaton, V., 817, the federal Bupreme 
court decided that this means not only the states, but the entire do- 
main of the Union. The provision thus extends also to the District 
of Ck>lumbia and to the ten-itories. ^ 

2 The words used are " capitation or other direct tax." In a recent 
decision {Springer V8, United States, 103 U. S., 586; Otto, XII.), the 
supreme court has affirmed the already dominant view, that only 
poll-taxes and taxes on real estate are direct taxes within the meaning 
of the constitution. An income tax thus comes under neither of the 
constitutional provisions cited. 

• Schlief s view (pp. 233, 234), that this refers only to articles ex- 
ported from one state of the Union into another, has never found a 
champion in the United States and never can find one. The debates 
of the Philadelphia convention over this paragraph were a struggle 
between the northern and southern states. The latter resisted with 
all their might the attempt to impose an export duty on their staple 
products, the result of slave labor, which were sent mainly to Europe. 
(See Elliot's Debates, V.. 802. 857, 891, 432, 454, 538, 539.) The fact 
that the confederate states imposed a heavy tax on the exx>ortation of 
cotton shows that the fear that congress for fiscal reasons would 
seize this means of raising money might easily have been justified, 
at least in times of distress. 



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THE FEDERAL OONSTITUTION. 119 

not be exercised. Above all, everything which comes ex- 
clusively within the jurisdiction of the states must be left 
alone by congress.^ Every tax which is confessedly laid 
for a private purpose is unconstitutional.* But the tax 
laws of congress never specify an object to which the 
funds yielded by the tax shall be applied. The courts 
are therefore not in a position to guard against the bur- 
dens imposed by a law upon the ground that an uncon- 
stitutional application of the resulting funds is intended. 
The constitutionality of federal taxes and of the use 
made of the federal funds are wholly distinct questions, 
which must be kept far apart. So far as appropriations 
are concerned, the courts evidently should decide against 
the power assumed by congress only in perfectly clear 
cases. For, in the nature of things, the legislative and 
not the judicial power has to discover what the " general 
welfare" demands and what may promote it. In con- 
gress, however, the very comprehensiveness and vague- 
ness of the expression make it possible to raise the 
constitutional question continually, but the decision is 
usually made from a political rather than a legal stand- 
point, however much legal arguments may have been 
formally pushed into the foreground during the debate. 
The legislative history of the Union, especially until the 
outbreak of the rebellion, forms a continuous chain of 
illustrations of this fact. Protective taxes and those lev- 
ied for the so-called " internal improvements," i. ^., build- 
ing roads, improving rivers, etc., have been claimed to 
be unconstitutional. Theoretically the contest is not 
entirely at an end at the present day, but the actual de- 
velopment of affairs has been so great that the one set 

» Oibibons vs. Ogden, Wheaton, IX., Id9. 

'See a number of instances and the judicial decisions upon them 
in Ck)ole7, Principles^ 58. 



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130 OONSTITUnONAL LAW OF TBE UNITKD STATES. 

of contestants carry on the conflict on politico-economical 
grounds exclusively, and the others make their defense 
on the basis of the industrial and political interests con- 
cerned in the particular case, unless, indeed, no national 
importance can be given to the interest in dispute. 

Finally, the states' concurrent right of taxation puts 
certain limitations upon the congressional right. Both 
are alike limited by several express provisions of the con- 
stitution. Without the consent of congress, the states 
can burden imports and exports with imposts of any kind 
whatever, only so far as is absolutely necessary for the 
execution of their inspection laws (art. I., sec. 10, § 2).* 
The states cannot levy a tonnage tax without the con- 
sent of congress (art. I., sec. 10, § 3). If, however, the 
conclusion were drawn from these express prohibitions 
that the states' right of taxation were subject to no 
further limitations, they might exert it in such a way 
that the federal government would be unable, except 
under great disadvantages, and perhaps not able at all, 
to carry out what it had found best to do in the discharge 
of its constitutional functions. And if the congressional 
power of taxation were subject only to the restrictions 
thus far noted, congress could so use it that the states 
would be hindered and crippled, even when they were 
acting within the constitutional limits of their authority. 
In either event, violence Avould be done to the funda- 
mental idea of the constitution, that the federal govern- 
ment and the state governments have the same aim — the 
welfare of the people. The concurrent right, therefore, 
is subject in each case to those limitations which are 
necessary for the security of the interests entrusted by 

1 The net proceeds of such imposts must be paid over to the United 
States, and all such laws are subject to the revisioii and control cf 
congress. 



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THE FEDERAL CONSTITUTION. 121 

the people to the protection of the other political factor. 
It IS impossible to point out every single consequence of 
this general principle. A few instances will make the 
matter suflSciently clear. The states cannot tax a bank 
created by the United States and acting as their fiscal 
agent, or the salary or other emoluments of federal offi- 
cials, or federal bonds, etc.^ Congress cannot tax state 
property, such as a railroad, salaries of state officials, 
municipalities and their property, etc.* 

Among the debts of the United States for the payment 
of which congi'ess could levy taxes are to be understood 

1 The fact that a corporation created by the United States renders 
its creator some service does not entitle it to exemption from all tax- 
ation by the states. BaHroctd Co, V8, Peniston, Wallace, XVIII., 5. 

2 See on this point, McCulloch vs. Maryland, Wheaton, IV., 316 ; 
Veazie Bank vs. Fenno, Wallace, VIII., 533; and Collector vs. Day, 
Wallace, XI., 113. The principal sources of income of the Union are 
the customs and the internal revenue taxes. The latter are sufficiently 
characterized by giving the principal heads of the income derived 
from them. The nation received in 1884 from distilled liquors, 
$76,905,385 ; from tobacco, |26,092,400 ; from malt liquors, $18,084,954. 
In 1883, it received from the sale of stamps, with which various 
articles had to be provided, $7,058,058 ; and from banks and bankers, 
$3,784,995. The taxation of business formerly went much further 
than at present. But even now it is not restricted to banks and 
bankers, as might appear from the above list. (The taxation of the 
capital and deposits of banks and bankers ceased March 3, 1883 ; they 
are, however, burdened with several other taxes.) Every manufact- 
urer and dealer in tobacco or the liquors designated is still subject to 
taxation as such. The ai'ticles and occupations which had to be taxed 
during the war, but which have since been freed, yielded in 1866 an 
income of $236,286,037. The proceeds of the customs were, in 1884, 
$195,067,489. The total imports for the year 1883 represented a value 
of $723,180,914, of which $515,676,196 consisted of merchandise sub- 
ject to duties. These goods paid an average duty of 41.63 per cent., 
equal to 29.68 }>er cent, on the tot€d import. In 1884 the imports 
decreased to $667,697,993. On the questions here treated, see F. 
Hilliaid, Taxation, Boston, 1885, and Cooley, Law of Taxation, Chi- 
cago, 1876. 



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122 CONSTITUTIONAL LAW OF THE UNITED STATES. 

those incurred under the articles of confederation as well 
as those contracted afterwards. The former are covered 
by the provisions of article VI., § 1, that the validity of 
existing obligations shall not be touched by the adoption, 
of the constitution.^ The latter are covered by the express 
grant of the right to contract new debts. Congress is em- . 
powered " to borrow money on the credit of the United 
States " (art. I., sec. 8, § 2). This power is granted with- 
out any limitation. Money may therefore be borrowed 
in every way known to modern mercantile life; nay, 
according to the decisions of the supreme court, in 
such a way that there is no borrowing whatever, even in 
the broadest sense of the term, but simply an advantage 
gained to the nation by the strengthening of its credit. 
The right to create the United States bank was deduced 
from this provision. Upon this clause, moreover, the 
constitutionality of the present system of national banks 
must be based.* Whether (and, if so, how far) congress 
has the power of making the federal currency a legal 
tender is a question which has formerly, and again quite 
recently, actively engaged the attention of the people, the 
politicians and the courts. But, in spite of the repeated 
decisions of the supreme court sustaining it, this power is 

1 In this connection the fourth section of the fourteenth amend- 
ment, which needs no commentary, may he cited. " The validity of 
the public debt of the United States, authorized by law, iucluding 
debts incurred for payment of pensions and bounties for services in 
suppressing insurrection or rebellion, shall not be questioned. But 
neither the United States nor any state shall assume or pay any debt 
or obligation incurred in aid of insurrection or rebellion against the 
United States, or any claim for loss or emancipation of any slave; 
but all such debts, obligations and claims shall be held illegal and 
void." 

"-* They are compelled to invest a large portion of their capital in 
government bonds, and thus the federal government can naturally 
borrow money much more easily. 



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THB FEDERAL CONSTITUTION. 123 

not considered as definitely established, since public 
opinion looks upon these decisions and their motives, at 
least in part, as very doubtful: Efforts are therefore 
being made to settle this very important question beyond 
doubt by an amendment to the constitution. At this 
point I can supplement what has been stated in another 
connection concerning this great contest by pointing out 
another constitutional provision, which cannot be prop- 
erly wholly disregarded in the argument, but, neverthe- 
less, contains no certain indication of the intentions of the 
authors of the constitution on this question. The states 
are forbidden to " make anything but gold and silver 
coin a tender in payment of debts." ^ The question was 
therefore not overlooked by the Philadelphia convention. 
But what conclusion is to be drawn from the express pro- 
hibition on the one hand and silence on the other? Was 
there no need of prohibiting congress because it has only 
the powers granted it? Or may the disputed power be 
deduced from this silence, because without it the worth 
of the power to borrow money would have been substan- 
tially diminished and this powder was granted without 
any limitation? No party and no political school has 
ever declared it to be a general principle of constitutional 
law that the federal government must be authorized to 
do whatever the states are expressly forbidden to do. 
And the very matters most closely related to the question 
in hand are not so treated by the constitution as to neces- 
sitate such a conclusion. In the very same paragraph 
the states are forbidden to coin money, but although this 
right must rest somewhere and could appertain only to 
the federal government if denied the states, yet the 
constitution does not let the matter rest with that 

1 Not " their " debts, as Schlief (p. 469) very arbitrarily translates 
this. 



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124 CONSTITUTIONAL ULW OF THE UNITED STATES. 

express prohibition, but expressly grants^ congress the 
power (art. I., sec. 8, § 6) " to coin money, to regulate 
the value thereof and of foreign coin." ^ But on the 

1 The coinage act of April 2, 1792, provided that the dollar should 
have 37 li grains of pure silver (416 standard) and the ten-dollar gold 
piece, the eagle, 247^ grains of pure gold (270 standard). The rela- 
tion of gold to silver was fixed at 1 :15. The disadvantages which 
soon arose in commerce were not traced back to the principle of the 
"double standard," but were attributed simply to the circumstance 
that gold had been valued too low. This difficulty was relieved by a 
law of J ine 28, 1834, which fixed the legal proportion of the two 
metals at 1 :16. Thereafter the eagle was to contain only 232 grains, 
pure gold (258 standard). But if the former rule prevented the coin- 
age of gold, the silver dollars, now above par, vanished out of cir- 
culation stiU more rapidly. A new coinage act of February 12, 1878, 
made the gold doUar the unit of coinage, but did not change the 
weight or fineness of gold coin ($1 equals 25.8 grains troy). The 
same law demonetized the silver doUar, i, e., thereafter only silver 
coins of fifty cents or less and also a new coin, 420 grains troy, caUed 
the trade dollar, because it was struck off solely in the interests of 
trade with Asia, were issued. The reason of the demonetization of 
the silver dollar was because, on account of its being above par, it had 
long since disappeared from circulation. In the preparation of the 
Revised Statutes, which became law June 20, 1874, the demonetiza- 
tion of the silver dollar — probably simply by an oversight — was 
made complete. The act of February 12, 1873, had provided that the 
silver thereafter coined should be legal tender only for $5 or less. 
The Revised Statutes extended tliis provision to all silver. Scarcely 
had the act of February 12, 1878, been passed than the value of silver 
began to sink rapidly in consequence of the extraordinary yield from 
the mines of Nevada, the adoption of the gold standard in Germany, 
etc. The result of this was an energetic agitation for the remonetiza- 
tion of silver, which speedily won over public opinion. A biU which 
President Hayes had refused to approve became a law Febniary 28, 
1878. The secretary of the treasury was directed to buy every month 
not less than two and not more than four million dollars* worth of silver 
at its market value and to coin it into silver dollars. The efforts to put 
the silver into circulation have, nevertheless, had only scant success. 
Of the $175,855,829 coined up to June 30, 1884, only $39,794,913 could 
be issued. In addition to this, there are $96,427,011 of " silver certifi- 



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THE FEDEKAL CONSTITUTION. 125 

other hand the states are forbidden to issue ^^ bills 
of credit," and the right of the federal government to 
do so is unquestioned, although this right was not ex- 
pressly granted to it, but is merely deduced from the 
authority to borrow money.* Yet the debates of the 
Philadelphia convention leave it very doubtful whether 
the intention was to give the federal government the right 
to issue paper money. An express grant of this power 
was in the draft of the constitution * and was stricken out 
by a vote of nine states to two. The views of the dele- 
gates differed, however, as to what rights congress would 
have in this respect, if nothing were said about it. The 
prevailing, if not quite unanimous, view was that congress 
would not be able to make the federal notes a legal ten- 
der.* On the other hand it may be alleged that the orig- 
inal idea was simply to forbid the states to issue bills of 

cates ^ which are received in payment of taxes and customs by the 
government. There is a growing fear that the government wiU soon 
be no longer able to make its payments in gold, and that then there 
will be a great crisis. President Cleveland, shortly before his inaugu- 
ration, declared himself in favor of the discontinuance of the coinage 
of sUver, but in February, 1885, both houses of congress defeated 
proposals to that effect. 

!•* Bills of credit'* are simply direct obligations of the state in- 
tended to circulate as money. Bank-notes do not fall imder this 
description, even if the state is the sole holder of the bank stock. 
Craig vs. Missouri, Peters, IV., 410 ; Briscoe vs. Bank of the Common- 
wealth of Kentucky, Ibid., XI., 251 ; Darrington vs. Bank of Ala- 
bama, Howard, Xin., 1?. 
2 " And emit bills on the credit of the United States." 
s Madison had proposed to declare this expressly instead of strik- 
ing out the clause, but thereafter he voted to strike it out because 
he, as he says, had convinced himself that it "would not disable 
the government from the use of public notes, as far as they could 
be safe and proper; and would only cut off the pretext for a paper 
currency, and particularly for making the bills a tender, either for 
public or private debts." Elliot's Debates, Y., 434, 485. 



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126 CONSTITUTIONAL LAW OF THE UNITED STATES. 

credit and make something else than gold and silver a legal 
tender when, and only when, congress did not consent.' 
There is much to be said in favor of the view that this is 
one of the cases where, by force of circumstances, an 
actually valid constitutional right has been created which 
runs counter to the true intent of the constitution. This 
cannot, however, be asserted with certainty. The pro- 
visions of the constitution and the debates of the Phila*- 
delphia convention show beyond doubt that the intention 
was to place the entire monetary system in the hands of 
the federal government, not only for the sake of uniform- 
ity but because the states were distrusted.^ 

1 Elliot's Debates, V., 484. 

2 Here it must be noted that conf^ress is expressly authorized to 
enact penal laws against counterfeiting both coin and paper currency. 
Art. L,8ec. 8, §6. 

The national debt of the United States reached its highest point in 
1865. It was then $2,844,649,626. At the close of the fiscal year 
1883-84, it had been reduced to $1,830,528,923. The annual i)ayment 
of interest has been diminished from $150,977,697 in 1865 to 
$47,926,432 in 1884. The per capita debt of $78.25 in 1865 has been 
reduced to $25.89 in 1884, and the per capita interest from $4.29 to 
86 cents. 

The history of paper money in the United States economically, po- 
litically and legally has formed one of the most significapt chap- 
ters in the story of national development. Upon the recommendation 
of the first secretary of the treasury, Alexander Hamilton, the act 
of February 25, 1791, created a " Bank of the United States." Its 
capital was not to exceed $10,000,000 in shares of $400, of which the 
government might take one-fifth, in consideration of which it was 
bound to receive the notes of the bank in payment. Its franchise 
was good for twenty years. When the bank sought a renewal it was 
refused. In the meantime the states had evaded the provisions of 
the confititution which, forbade them to issue bills of credit by author- 
izing the creation of banks with the right of issuing notes. These 
small banks, the jealous complaints of which had much to do with pre- 
venting a renewal of the franchise -of the United States Bank, now 
had a free field. Like mushrooms after a warm sunmier shower, they 



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the federal constitution. 127 

§ 37. The Budget and Administration of Finanob. 
The axiom, that "the purse strings must be in the hands 
of the representatives of the people," i, ^., of the legis- 
lature, the Americans obtained from England. In its 
application, however, it has undergone an important 
change and won a much wider range. In this connection 

it becomes particularly clear and evident that there is a 
• 

sprung into ezistencey and very often did business in a most extraor- 
dinary manner. 

The " wildcat currency " period still survives in the memory of the 
people. Scarcely was the United States Bank dissolved than the 
United States had to create a substitute for its notes. Trouble with 
England, finally leading to war, produced financial embarrassments 
which induced congress in 1812 to authorize the issue of interest- 
bearing treasury notes. They were the first federal notes under the 
constitution of 1789, which, although not legal tender, were never- 
theless issued in order to circulate as money. In 1815 the issuance of 
non-interest-bearing notes was begun. The cessation of cash pay- 
ments in almost the entire country and the innumerable different 
bank-notes produced boundless confusion. The report of the secre- 
tary of the ti-easury in 1815 says: "Hence it has happened (and the 
duration of the evil is without any limitation) that, however ade- 
quate the public revenue may be in its general product to discharge 
the public engagements, it becomes totally inadequate in the process 
of its application, since the possession of public funds in one part no 
longer affords the evidence of a fiscal capacity to discharge a public 
debt in any other part of the Union." The treasury notes varied in 
market value in different portions of the country as much as fifteen 
per cent. Congress sought to stem the evil by creating a new United 
States bank, again for a period of twenty years. The chief provis- 
ions of the law of April 10, 1816, were as follows : There was a capi- 
tal of $55,000,000, of which the United States took a fifth ; all the 
government offices had to take bank-notes at par; the bank was 
bound, under heavy penalties, to redeem its notes in coin ; the gov- 
ernment funds were to be deposited at the bank, and it was to pay 
the government |1.500,000 annually for its privileges. 

From the outset the bank had to contend with difficulties of the 
most diverse kinds. Vigorous and, in part, not unfounded complaints 
were made of its business management, and President Jackson made 
its annihilation a chief end of his administration. When the bank 



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128 CONSTITUTIONAL LAW OF THE UNITED STATES. 

substantial difference (in the proper sense of this word 
"substantial") between what is called in Europe the 
" government " and in the United States the " adminis- 
tration." It is the duty of the president and certain 
organs of the executive authority to administer the af- 
fairs of state in the manner prescribed by law. But so 
far as their determination is concerned, his constitutional, 

in 1833 asked for the renewal of its franchise, the biU was passed by 
congi'ess, but vetoed by the president July 10. The bank held, it 
is time, a charter from the state of Pennsylvania, but was neverthe- 
less unable to maintain itself. It is now generally accepted as a 
good thing that the connection of the government with the bank was 
dissolved, but the new order of things was ushered in at the time of 
a general bank and monetary crisis. When the conflict between the 
north and south had ripened into a catastrophe, the government in 
its embarrassment laid hold of the means used before and issued 
treasury notes. Besides this it negotiated a number of loans in coin 
in exchange for interest-bearing bonds from the stat« banks whose 
notes were at par. While its necessities grew apace from day to day 
to gigantic proportions, it nevertheless continued to issue treasury 
notes and refused to receive the bank-notes. These were presented 
to the banks in large amounts for redemption. The banks thereupon, 
on December 27, 1861, suspended cash payments. On January 1, 
1862, the government did likewise. Secretary Chase now wished to 
issue irredeemable paper money. The law of February 25, 1863, 
passed after a long debate, authorized the government to issue 
$150,000,000 in notes, the lowest denomination to be $5, which should 
be ** legal tender*' for all public and private debts then existing or 
thereafter conti*acted, and exchangeable for six per cent, bonds. The 
import duties were to be paid in gold. Even though the law did not 
explicitly declare it, it was nevertheless understood that the sum of 
$150,000,000 should not be exceeded. But necessity soon compelled 
the issuance of new notes, likewise made a legal tender ; at the same 
time, the provision forbidding the issue of notes in sums less than $5 
was repealed. Moreover, the law of March 8, 1863, authorized inter- 
est-bearing notes ; provided that the right to exchange the paper cur- 
rency for six per cent, bonds at par should lapse July 1, 1863 ; and 
burdened the notes of the state banks with a tax of two per cent. 
But this taxation was not, however, the only means with which the 
secretary of the treasury and congress attacked the sixteen hundred 



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THE FEDERAL CONSTITUTION. 129 

legal, and practical influence is restricted to the fact that 
he can recommend to congress such measures as seem 
good to him, and that by refusing to approve an act he 
can put before congress the alternative either of stopping 
the wheels of government in whole or part or else chang- 
ing its conclusions, unless both houses by a two-thirds 
majority persist therein. In European countries one of 

state Itanks, the notes of which at the beginning of the war com- 
prised the largest part of the droulating medium. The attack was 
justified, for the genuine notes were about seven thousand in num- 
ber, and the counterfeits — Upton distinguishes between " altered, 
spurious, imitated, and other kinds more or less fraudulent *'— also 
ran up among the thousands. The system of national banks, towards 
which Chase gave the first impetus in December, 1861, put the axe to 
the root of this wretched confusion. The first law about the national 
banks (approved February 25, 1863) has in the course of time re- 
ceived manifold, more or less substantial, amendments. The most 
important of the provisions in force at present are the following : A 
minimnni capital is fixed, which increases with the size of the place ; 
a TniniTnnm number of stockholders is likewise fixed ; at least one;- 
half of the capital must be paid in immediately, and the rest in 
monthly instalments of at least ten per cent. ; at least one-third of 
the paid-up capital is to be deposited with the treasurer of the United 
States in the form of interest-bearing, registered United States bonds ; 
for ninety per centum of the market value of the bonds deposited — 
provided that does not exceed the par value — the bank receives 
notes of different denominations engraved in blank; if the bank 
desires to diminish the note circulation, it pays the United States 
treasurer ** legal tender notes," receiving a corresponding amount of 
its bonds on deposit, and the treasurer redeems the notes of the bank 
to an equal amount when they are presented to him ; each bank must 
deposit an amount equal to five per cent, of its notes in the United 
States treasury, and the treasurer uses this deposit to redeem the 
notes presented to him ; every national bank must receive the notes 
of every other national bank at par ; the government pays out the 
notes at par, except for interest on the public debt; the notes re- 
deemed by the treasurer are destroyed, and in lieu thereof new notes 
are given the bank upon its making its deposit for redemption good ; 
no limit of time is fixed for the redemption of the notes of banks 
which have ceased to exist for one or the other reason, and the part 
9 



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130 OONSTITUnONAL LAW OF THB UNITED STATES. 

the chief tasks of the government is to prepare and pre- 
sent the budget. The legislature must accept it, after 
making such corrections as it may see fit. The ministers 
are free to escape any responsibility for these corrections 
by resigning. In the United States, on the other hand, 
so far as the constitution is concerned, the labor and the 
entire responsibility of the budget rest upon congress. 
It is permitted to summon the organs of the executive to 
its aid as much and in whatever way it may see fit. If 

of the five per cent, deposit not used for redemption must finaUy fall 
to the United States, as no other use for it is provided. At the con- 
clusion of the civil war there were stiU $143,000,000 of the state bank 
notes in circulation, against $146,000,000 of national bank notes. 
But as from July 1, 1865. the state banks had to pay a tax of ten per 
cent, on their notes, the state bank currency disappeared entirely. 
All the notes of the United States of every kind whatever added to- 
gether reached at the time $695,000,000. With the spring of 1866, 
measures were taken to reduce this monstrous mass of depreciated 
money. The speculations of the exchanges ran the price of gold in 
a wild whirl up and down and at times staggered even the policy of 
congress and of the administration. Under the operation of the gen- 
eral business crisis of 1878, congress resolved, in April, 1874, to in- 
crease the amount of notes outstanding, but President Grant refused 
to sign the bill. An act of January 14, 1875, fixed the resumption of 
specie payments for January 1. 1879, and despite all opposing prophe- 
cies this was carried out without any difficulties, fourteen and a half 
years after the legal tender notes had sunk to about one-third of their 
face value. (On the 11th day of July, 1864, gold was quoted at its 
highest point, 285.) But the national banking system, which has 
finally given the country a uniform and safe circulating medium^ 
and even in the judgment of its original opponents has proved itself 
of substantial excellence, is approaching a crisis. The basis of the 
system is the deposit of United States bonds, and this basis is being 
destroyed by the rapid extinction of the public debt and the vigorous 
reduction of the rate of interest. See E. G. Spaulding, History of 
Legal Tender Paper Money, 2d ed., BuflPalo, 1876 ; F. Q. BaU, National 
Banks, Chicago, 1881 ; W. G. Sumner, A History of American Cur- 
rency, N. Y., 1874; J. J. Knox, United States Notes, 1884; J. R. 
Upton, Money in Politics, Boston, 1884. 



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ISB FEDERAL OONSTITimON. 131 

it does 80, in so far as it makes their co-operation a legal 
duty, it imposes a legal and political responsibility; but 
the constitutional responsibility belongs to congress alone, 
i. e.y it cannot hide itself behind the cabinet. As the 
administration can present no bills, and consequently 
cannot be made responsible either for the public revenue 
or for the manner and means of its collection, so also, 
in regard to the public expenditures, it can make no de- 
mands, but can simply work out estimates of expenses 
and make suggestions. So far as the initiative is con- 
cerned, the administration has no will of its own, but 
only an opinion. The only right or duty the secretaries 
can have in the matter is to report as experts upon the 
business affairs of the state. 

After making such a report — when congress permits or 
desires it — the whole matter is constitutionally and legally 
at an end from the standpoint of the administration. 
The president and the heads of the departments cannot 
even take a stand against a proposition which is opposed 
to their well considered recommendations, while it is 
under discussion in congress. And when the final cour 
elusions of congress reach the president, he can send back 
the bill concerned only as a whole. Only the particular 
bill, and not the whole budget, for the entire budget is 
not framed at once. The appropriations are made in 
groups, each of which is covered by a separate so-called 
appropriation bill.* These bills always originate in the 
house of representatives and they are in fact prepared by 

iThe legislative, executive and judicial expenses appropriation; 
dvil exi>enseB appropriation; consular and diplomatic appropria- 
tions; army appropriation; Indian appropriation; pension appropria- 
tion; military academy 'appropriation. To these are added special 
appropriations and a greater or lees number of deficiency appropria- 
tiona. 



g^,^l-A^y 




r^iivv.^'-^^v. 



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132 CONSTITUTIONAL LAW OF THE UNITED STATES. 

its '^ committee on appropriations." ^ They must emanate 
from this house, because the constitution provides: "All 
bills for raising revenue shall originate in the house of 
representatives." 

It has always been undisputed in the United States 
that " bills for raising revenue " include all the soK»,lled 
" money bills," but there have often been different views 
as to the legitimate application of this doctrine.* The 
house of representatives has always asserted that its func- 
tions embraced the framing of the appropriation bills, and 
the senate has never succeeded in its occasional efforts to 
maintain the contrary. A literal interpretation of the 
constitutional provisions must evidently decide the mat- 
ter against the claims of the house of representatives, 
and, too, the discussions of the Philadelphia convention 
tell more against than in favor of these claims. But 
Seward was right in saying, February 7, 1856, in the sen- 
ate, that the fact that from the beginning the house 
claimed the framing of the appropriation bills as its priv- 
ilege and that the senate did not contest it, was weightier 
than these arguments.' The question whether the doc- 
trine should be narrowed or widened is, however, as expe- 
rience has taught, one without practical significance, as 

1 The committee on appropriations bears the same relation to the 
expenditures that the committee on ways and means does to the 
public revenue. There are thus two budget commissions and no 
budget. Congress does not place the revenue and expenditures in 
juxtaposition and thus make a simple whole of the public finances. 
How far congress has made it the duty of the secretary of the treas- 
ury to elaborate a sketch of the budget for it, was explained in dis- 
cussing the organization of the treasury department. 

2 See especiaUy the debate in April, 1873, Congressional Oldbe^ 2d 
session, 42d Congress, p. 2105 et seq, 

' Cong. Oldbe, Ist sess., 34th Cong., 876. When the senate, despite 
this, sent some appropriation bills to the house, the latter simply laid 
them on the table. 



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THE FEDERAL CONSTITUTION. 133 

the constitution itself reduced the idea, borrowed from 
the constitutional law of England, to a merely formal 
privilege of the house of representatives. The paragraph 
goes on to say that " the senate may propose, or concur 
with, amendments, as on other bills." In practice, how- 
ever, the privilege of the house of representatives has 
become a public wrong of no slight consequence. The 
senate's amendments are not discussed m the house, but 
simply rejected. The senate persists, and the bill is re- 
ferred to a conference committee in which both houses 
are equally represented. The proposals of this committee 
cannot be amended. They must be adopted or rejected 
as a whole. As action upon them is generally postponed 
until towards the end of the session, the house adopts 
the committee's report, because it shrinks from the re- 
sponsibility of letting an entire appropriation bill go to 
wreck on account of a few questions of detail. While 
thus, in the senate, the appropriations suggested by the 
house are carefully investigated, amended at will and per- 
fected, the house by its own beloved rules subjects itself 
to a certain moral compulsion by which it is forced to 
assent to the conclusions reached by only three of its 
members and a like number of senators. Occasionally 
indeed, one of the general appropriation bills has failed 
to pass.' But neither of the houses will lightly undertake 
this responsibility, because the constitution provides that 
no money shall be drawn from the treasury but in con- 
sequence of appropriations made by law (art. I., sec. 9, § Y). 
The administration therefore has no constitutional right 
to apply the moneys in the treasury to meet any public 
needs whatever, even if they be the most urgent, which 
congress has not provided for by making appropriations. 
In the event, therefore, of the failure of an appropriation 
*See, for instano^, my Constitutional History , V., 414. 



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184 CONSTITUTIONAL LAW OF THE UNITED STATES. 

bill, a most wretched and unendurable state of affairs 
must quickly come to pass. 

Even under the most favorable circumstances the ad- 
ministration can get along for but a few months, because 
the appropriations are made only for one year. This is 
not due, however, to any constitutional necessity. On 
this point the constitution contains only the provision 
that congress may ^^ raise and support armies, bat no ap- 
propriation of money to that use shall be for a longer 
term than two years " (art. L, sec. 8, § 12). Congress, 
therefore, unquestionably has a right to substitute a bi- 
ennial for the annual budget. It is, however, a different 
question, whether the provision just quoted implies the 
power of congress — except as to the army — to have a 
triennial or quadrennial budget. While it can certainly 
make appropriations for a longer time, it also certainly 
cannot frame an entire budget which shall be good for 
more than two years. And it can make one good for two 
years only when it does so at the beginning of its own 
existence.^ No congress can bind subsequent congresses 
in such a way as to curtail their constitutional powers. 
And it is, moreover, evident not only that no congress 
would permit its predecessor to deprive it of its right of 
framing a budget, but that it could not constitutionally 
renounce its independent exercise of this right. Even a 

1 The constitution keeps a few appropriations beyond the oontrol of 
oongreas. By several acts, however, the number of the so-caUed " pei^ 
manent appropriations" has gradually grown to between twenty and 
thirty. Some years ago the senate passed a biU which repealed these 
altogether, save those for the president's salary, the salaries of the 
federal judges and the interest on the public debt. The assent of 
the house of representatives, however, could not be obtained, because 
the bill would have endangered the continuance of the act known 
as the " Bland bill,*' which requires the annual coinage of at least 
twenty-four million silver dollars. 



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THE FEDERAL CONSTITUTION. 135 

single appropriation extending over a longer period must 
always presuppose the tacit sanction of the new congress. 
It is not likely that these questions will ever become 
practical. The United States is in too eminent a degree 
a popular state to let it seem possible that one congress 
would ever show a desire to usurp the prerogatives of 
future congresses in this respect. In fact the annual 
framing of the budget was probably not required by the 
constitution, only because it was regarded as a matter of 
course. 

As the budget is fixed annually, the statement of the 
public revenue and expenditure, which must be published 
" from time to time " (art. L, sec. 9, § 6), is issued every 
year. The total revenue for the fiscal year 1883-84 was 
$348,519,869 (against $398,287,581 in the preceding year). 
The chief individual sources of revenue have already 
been mentioned. Here we may add that the sale of pub- 
lic lands , yielded $9,810,705. The income from land 
sales exceeded these figures only in the three years 1835, 
1836 and 1855, in the two former very considerably. 
But in the other years as a rule the receipts were much 
smaller. Congress appropriated for the fiscal year 
1884-85 $137,451,398, distributed as follows: deficien- 
cies, $4,385,836; legislative, executive and judicial ex- 
penses, $21,556,902; sundry civil expenses, $22,346,750; 
support of the army, $24,454,450 ; naval service (for only 
the first half of the year), $8,931,856; Indian service, 
$5,903,151; rivers and harbors, $14,948,300; military 
academy, $314,563; forts and fortifications, $700,000; 
pensions, $20,810,000; consular and diplomatic service, 
$1,225,140; agricultural department, $480,190; District 
of Columbia, $3,594,256; miscellaneous, $7,800,004. 



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186 OOHBTITUTIONAL lAW OF THE UNITED STATES. 

COMMERCE, INTER-STATE AND NATIONAL.! 

§ 38. Trade ajstd Commerce scarcely came within the 
range of congress, under the articles of confederation.' 
The many and great evils resulting from this gave the 
most direct and vigorous impetus to the struggles for re- 
form which led to the Philadelphia convention and to the 
adoption of its plan for a constitution. The convention 
therefore naturally considered it to be one of its greatest 
tasks to nationalize the Union in this respect. It has 
been rightly said that the consolidation of the industrial 
interests of the country has proved to be the strongest 
bond of the federal state. 

Congress (says art. L, sec. 8, § 3 of the constitution) is 
authorized " to regulate commerce with foreign nations 
and among the several states and with the Indian tribes.'" 

IF. Chamberlin, American Commercial Law, Hartford, 1872; R 
Destj, Commerce, Navigation and Shippiiig of the United States, 
San Francisco, 1880 ; L. Houck, Law of Navigable Rivers, Boston, 
1868; J. G. Thompson, Law of Highways, 3d ed., Albany, 1881. 

3 So far as trade was concerned, only that with the Indians was 
subject to its control. As to its other powers in regard to commerce, 
see the fourth paragraph of article IX. 

'The Indian appears in the constitution only here and in the pro- 
vision concerning the apportionment of the number of members of 
the house of representatives and in the clause about direct taxes. The 
multifarious powers to regulate Indian affairs which the federal gov- 
ernment has claimed and exercised must therefore be constitution- 
ally based on all sorts of other constitutional provisions. Neither 
statesmen nor publicists have as yet, however, taken the pains to 
enter into the complicated questions involved therein and to analyze 
and explain them. In congress much has been frequently said con- 
owning this or that question of law and the federal supreme court 
has rendered some important decisions. In general, however, the 
legal side of the problem has been pushed into the background by the 
practical. In respect to both of them, as Americans themselves 
admit without reserve, much has been overlooked and much seriously 



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THE FEDERAL CX)NSTmJTION. 137 

From the extremely large number of judicial decisions ren- 
dered in interpretation of this provision, two most compre- 
hensive principles are to be deduced: First, the word 

neglected. The first cause of the failures and mistakes has been in 
no sniaU degree the lack of knowledge of and care for the fundamen- 
tal question of law. Formal treaties have been concluded with the 
Indian tribes, as if thej were independent nations with equal rights 
with whom and towards which the United States had an international 
relation. Tet, as a matter of fact, no such position has been granted 
them. It could not be granted. Urged on by the development of 
circumstances and by the fact that the domains of the tribes formed 
a constituent part of the territory of the Union, the government fell 
more and more into contradictions in its own actions towards the 
Indian and piled injustice upon injustice. By degrees men became 
aware of the blunders of the fathers of the republic. The law of 
March 3, 1871, put an end to further danger from this source. This 
law provided that in future no treaties should be concluded with the 
Indians, because they, as it expressly stated, are not independent na- 
tions. This put what are left of the unfortunate aborigines in a legal 
relation to the federal government corresponding with their actual 
one : They are wards who must be cared for so far as equity and hu- 
manity demand on the one hand, but on the other with due regard 
to the demands of civilization as it sweeps over the continent. They 
are still treated upon the theory that they are to be isolated as far as 
possible. Their domains are reservations. The largest is Indian Ter- 
ritory, which has a very peculiar status. It embraces over seventy 
thousand square miles, is bounded on the south by Texas and the 
Red river, on the east by Arkansas, on the north by Kansas, and on 
the west by Texas and New Mexico. A large number of tribes in- 
habit it and have legal relations with one another. The United 
States has only " executive jurisdiction," but certain law questions 
fall within its sphere to decide. A fuller discussion of the very pe- 
culiar structure of this semi-barbaric pseudo-state of the Union would 
be out of place here. Only the most important matters as to the reg- 
ulation of Indian affairs can be brought forward. AU tribes which 
have come to an agreement with the United States have their own 
districts, caUed reservations, which are sprinkled over the states and 
territories. The government is represented among the tribes by 
*' agents" (and sub-agents), over whom are "superintendents" and 
" inspectors." At the head of the entire office of Indian affairs, form- 
ing a part of the department of the interior, is a commissioner. The 



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138 CONSTITUTIONAL LAW OF THE UNITED STATES. 

"commerce " has not the same signiiScation as traffic, pur- 
chase and sale, i. e.^ as " trade " in its more limited sense, but 
includes also the idea of " transportation." The author- 
agents must give a bond, the amount of which is fixed by the presi- 
dent and the seci-etary of the interior. They must reside at a phice 
fixed by the president within the limits of their reservation, or in its 
immediate vicinity, and must not leave their reservation without per- 
mission. Neither they nor the other officials of the Indian service 
are permitted to be interested in any business whatever with the 
Indians under a penalty of $6,000. Trade can be carried on with the 
Indians only by citizens of the United States, and these must give 
bond in the sum of $5,000 to $10,000 and procure a license, which can 
at any time be revoked by the superintendent, whenever he is con- 
vinced that the particular person is objectionable. The purchase of 
implements of the chase, and under some circumstances also the sale 
of weapons and ammunition, are subject to all sorts of restrictions. 
The sale, manufacture and introduction of intoxicating liquors on 
the reservations are most strictly forbidden. In order to prevent the 
violation of these rules, a comprehensive right of search is granted 
to the agents. Whoever carries on business without a license for- 
feits, in addition to all his merchandise, the sum of $600. Contracts 
can be made only with aU sorts of formalities. As a general rule, the 
purchase of land is not permitted. A man who trys to buy land or 
surveys land in the reservation ia liable to fine. Outsiders can enter a 
restrvation, only if provided with a pass, and no one is permitted to 
settle there. Trespassers are expelled if necessary by the military. 
Any one who returns after being expelled must pay a fine of $1,000. 
The right of hunting and grazing in the reservations belongs solely 
to the Indians. Crimes are punished according to the laws of the 
places wherein the United States have exclusive jurisdiction. The 
Indian appropriation was $5,003,151 in 1884. The greater part of this 
is used in paying the tribes the moneys granted them and in supply- 
ing them with clothing, cattle, etc. In part it is a payment for lands 
ceded by the Indians according to treaties or other agreements and 
m part a gift without any legal obligation whatever. Without such 
assistance most of the tribes would soon succumb to hunger and mis- 
ery. The federal government seeks by gifts to raise them gradually 
to such a degree of civilization that they will become able to support 
themselves. A business spirit has been stimulated by presenting in- 
dividuals among them with cattle and rewarding them for tlie 
tncrease. In a similar manner, attempts are made to encourage agri- 



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THB FEDERAL CONSTITUTION. 139 

ity of congress extends to all international and inter- 
state commerce,* embracing all the means as well as the 
subjects thereof, including persons in either capacity.' 
Second, with commerce within the limits of one single 
individual state, congress has nothing to do. Thus if the 
authority of congress is far-reaching, it is nevertheless 
restricted, and the precise demarcation of its limits is for 
various reasons not an easy matter. 

Among the infinite possibilities presented by the occur- 
rences of real life, it is often very difficult to draw the 
line of distinction just indicated. The exclusive author- 
ity of the separate and individual state is not under all 
circumstances co-extensive with its geographical limits, 

culture. In general the efforts of the government are directed towards 
dissolving the tribal relation and substituting the institution of indi- 
vidual property. New sources of industry were opened to these 
people and their self-respect heightened by placing in their own hands 
the distribution of the government goods and by organizing from 
their midst an Indian police force. And finally a number of schools 
have been successfully opened, in which the instruction given is eepe- 
ciaUy adapted to their peculiar mental and bodily dispositions and 
desires. The good results of aU these measures are already very no- 
ticeable. They have brought about a new era in the Indian policy. 
A great part of the credit belongs to Carl Schurz, who, as secretary 
of the interior under President Hayes, took especially to heart the 
care of the Indians. Still, only the beginning has been made of a 
more humane and just policy, corresponding better with the true in- 
terests of both parties ; and th$ government has no little trouble in 
enforcing even the laws which now exist. It is not easy to impress 
the rough and reckless pioneer population with the idea that the 
Indians have any rights which must be respected. At the moment I 
write, it has become necessary to repel by force iUegal invasion of 
the Indian Territory and of the other reservations. 

1 Gibbons vs. Ogden, Wheaton, IX., 189. 

^The Passenger Cases, Howard, VIL, 288. Five judges declare 
themselves against the view expressed by Judge Barbour in the 
earlier case of New York vs. JlfiZn (Peters, XL, 102X that persons could 
not be "the subject of commerce." 



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140 00N8TITUT10NAL LAW OF THE UNITED STATES. 

even when these limits are in no wise overstepped in the 
case in question. Thus, for instance, in 1851, the supreme 
court decided that Virginia had no right to permit a 
company to put a suspension bridge over the Ohio river 
at Wheeling (when the stream was entirely within the 
territorial limits of the state) so as to interfere with nav- 
igation, because the Ohio was a navigable water way 
between different states, and congress must regulate inter- 
state commerce, and that commerce included navigation.* 
In other cases, however, it has been decided that the 
states, if congress has not exerted its legislative author- 
ity, can permit the building of a bridge over a navigable 
stream flowing wholly within their jurisdictions, even if 
it interferes with navigation. These decisions were based 
upon the fact that bridges as well as navigable streams 
are means of commerce, and that the states must be able 
to determine whether and how far commerce across the 
water should be preferred to commerce on the water.* 
Finally, the right of the states to build bridges or let 
them be built over navigable streams within their limits, 
when there was no interference with navigation, has been 
repeatedly acknowledged. Whether there is or is not such 
interference is a question of fact that must, in every in- 
stance, be decided with regard to the circumstances of 
the particular case.' 

1 Howard, XIII., 618. But when congress legalized the bridge, as 
built, a suit brought bythe state of Pennsylvania was dismissed by 
the supreme court because the assertion of an interference with navi- 
gation, accepted as valid by the court, had not been made good before 
congress. 

^Oilman w. Philadelphia, Wallace, III., 718; The Pas9aio Bridget, 
Ibid., 782. 

•See WiUon V8, Bladdnrd Creek Company, Peters, II., 345, as well 
as the remarks of Justice McLean (Howard, VII., 807, 808), and Jus- 
tice Clifford (Wallace, III., 743), upon this decision. 



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TUE FEDEBAL CONSTITUTION. 141 

Further diflBiculties arise out of the question whether 
and how far the constitutional authority of congress is 
an exclusive one, i. «., whether and how far the states 
possess concurrent power. When congress enacts a law, 
then, according to the judicial decisions, all state legisla- 
tion is overruled, even if it does not immediately concern 
the same subject-matter.* Strictly taken, the authority 
of congress is an "exclusive" one, and a "concurrent" 
power of the states cannot be recognized.- But, in spite 
of this, legislative action on the part of the states, within 
the range of the constitutional authority of congress, is 
admissible. If congress has not made use of its powers, 
the inference may be drawn either that it does not wish 
any legislation on the matters in question, or else that it 
wishes to let the particular local circumstances control, 
and that it therefore commits the matter to the states or 
state concerned. Thus, for instance, if congress were en- 
titled to enact a general pilot law on the ground that the 
pilot system belongs to navigation, and the regulation of 
navigation is included in the right to regulate commerce, 
and if it should nevertheless refuse to enact such a law, 
it would thereby say that it does not regard the pilot 
system as adapted to a general and entirely homogenous 
reflation. In such a case the state laws concerning 
pilotage could not be declared to be unconstitutional en- 
croachments upon the domain of congress.' The states 
are by no means always entitled to legislate, if, and so 

1 The Passenger Cases, Howard, VII., 283. The reasoDfl for the de- 
cision of the court as such were not given in this case ; only the indi- 
vidual judges gave reasons ; but five of them maintained the opinion 
stated in the text. 

2 See Judge McLean's remarks in the Passenger Cases, cited supra, 
upon MarshaU's decision in Oibbons vs, Ogden, and Story's reference 
thereto in New York vs. MUn. 

« CooUy vs. The Part Wardens^ Howard, XH., 399. 



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142 CONSTITUTIONAL LAW OF THE UNITED STATES. 

long as, congress does not exercise its authority, but ac- 
cording to the above decision the exclusiveness of the 
authority of congress is not always absolute. In what 
case it is or is not to be regarded as such is manifestly 
not always quite certain from a legal standpoint. The 
courts must base their decision more or less upon consid- 
erations of a practical political nature, and therefore it 
may often be highly doubtful to which category the case 
in hand should be referred. 

Difficulties grow apace because, as the federal supreme 
court has decided, " it is not everything that affects com- 
merce that amounts to a regulation of it, within the 
meaning of the constitution ; " ^ and the states, moreover, 
have certain powers by the exercise of which they may 
very easily come into conflict with the congressional leg- 
islation which regulates commerce. First and foremost 
of these are the police powers of the states. Drawing 
the line up to which a direct or indirect invasion of the 
province of congressional legislation on trade and com- 
merce will be acknowledged as authorized, must neces- 
sarily be a somewhat arbitrary process. Thus, for in- 
stance, health and quarantine laws fall within the domain 
of the state.* It is very evident, however, that such laws 
could readily be made to interfere with many of the provis- 
ions of congressional legislation about trade and commerce. 
Moreover the supreme court in the License Cases (How- 
ard, v., 504) decided that the states might, under certain 
restrictions, require the trade in liquors imported or 
brought from another state to be licensed, while in an 
older case {Brown vs. Maryland^ Wheaton, XII., 419) it 
was decided that in general the importer's right of sale 
must not be interfered with by the state's requiring him 

1 State Tax on Railway Oroas Reoeipts, Wallace, XV., 398. 
« Gibbons t?«. Ogden, Howard, EX.; 203. 



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THE FBDEBAL CONSTITUTION. 143 

to buy a license. The judges, however, assigned the 
most diverse reasons for their decision in the License 
Cases. And it can by no means be discovered from these 
reasons how far the states may go in the exercise of their 
police power in restricting commerce in articles which 
they regard, for any reason whatever, as injurious or dan- 
gerous to the community. Similar conflicts may arise 
from the right of taxation possessed by the states. In 
inter-state or international commerce, neither the goods 
nor the transportation of property or persons can be 
taxed by the states.' But the business as such and the 
capital used in it are subject to the state's right of taxa- 
tion. The correctness of this principle certainly cannot 
be attacked, but just as little can it be disputed that it 
gives the states the power of encroaching very seriously 
upon the congressional domain, if they are only careful 
about the way in which they do so.^ The courts indeed ' 
are in no wise bound to permit the simple question of the 
sufficiency of the form in which a state carries out its 
right of taxation to determine their decisions, and they 
do not do so. As soon as they enter upon the question, 
whether the tax-laws of a state materially encroach upon 
the right of regulating international and inter-state com- 
merce, subjective views are again given more or less 
sway. 

These observations will be sufficient to show why an 
accurate judgment of the extent of this constitutional 
provision in all its ramifications is possible only in con- 
nection with all the judicial decisions to which it has 

1 State Freight Tax, Wallace, XV., 233 ; The Passenger Cases, How- 
ard, Vn., 288. 

> How easily and in what various ways this may occur wiU be suf- 
ficiently indicated by pointing to the decision in Liverpool Insurance 
Company vs. Massachusetts, Wallace, X., 566, according to which a 
state can tax a foreign corporation higher than similar corporations 
created by its own laws. 



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144 OON8TITUTIONAL LAW OF THE UNITED STATES. 

given rise. And they also show why no general and 
fixed commercial law, in the European sense of the word, 
has been developed in the United States. The narrow 
frame of this work makes it necessary to let this suffice 
and only to mention briefly the matters subject to the 
authority of congress, under this general provision, either 
by force of custom or of judicial decisions. 

This authority extends to the places, the means and the 
subjects of trade and commerce. 

As to the places, congress must not only provide where, 
under what conditions, and how certain events in interna- 
tional and inter-state commerce — such as the departure 
and arrival of vessels, the discharge of their freight, the 
payment of duties, etc. — shall take place, but it inust 
also take care that the places meet the demands of com- 
merce and trade. That is, it must put and keep the har- 
bors in good condition, must improve the navigability of 
the rivers, must build light-houses, piers, etc. 

As to the means, the principle prevails that the author- 
ity of congress is not restricted to those means which 
were known and in use at the time of the adoption of the 
constitution. Steamboat and railroad traffic and the tel- 
egraph system are as much subject to congressional regu- 
lation as were the media of commercial intercourse of 
earlier times. Its powers " keep pace with the progress 
of the country and adapt themselves to the new develop- 
ments of time and circumstances. ... As they were 
entrusted to the general government for the good of the 
nation, it is not only the right but the duty of congress 
to see to it that intercourse among the states and the 
transmission of intelligence are not obstructed or unnec- 
essarily encumbered by state legislation." * Whether and 
how far congress is entitled to itself provide media of 

^Penmcola Tel Co. vs, Wegteni Union Tel Co., Otto, VI., 124; Coo- 
ley, Principles, 66, 66. 



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THE FEDERAL CONSTITUTION. 145 

commerce, L e^ to establish highways, to build or mate- 
rially aid in building railroads, etc., is one of the oldest 
and most important questions, and one which has not yet 
received a final and comprehensive legal decisipn. But 
the tendency of actual development has always been to- 
wards the subordination of legal arguments to consider- 
ations of expediency. On the other hand the power of 
congress to use its authority to regulate trade in such a 
way as to indirectly accomplish other objects is generally 
recognized.* Congress has done this in the numerous 
laws usually referred to under the name of registration 
and navigation laws. These are in great part designed 
to give American ship-builders and ship-owners an advan- 
tage over their foreign competitors. To the power to 
regulate the means of commerce we must also refer the 
laws as to building and outfitting of vessels, the number 
and safety of the crews, as well as of the passengers, the 
discipline, the legal rights and duties of the sailors, etc.^ 

1 How far congress may do this has, however, been a hotly con- 
tested question in the battles between protection and free trade. 

< The influence of the federal government upon the means of com- 
mercial intercourse — apart from those used in navigation — has been 
up to the present time comparatively very limited. As to the rail- 
roads, it has reserved a somewhat more comprehensive power only as 
to the roads in the construction of which, to be discussed further on, 
it assisted in part. In the discharge of its constitutional duties, in 
which it could not do without the railroads, as in the carrying of the 
mails, congress promptly used its legislative powers as far as the pub- 
lic interests seemed to demand. But as to the rest, the federal laws 
contain little more in reference to the railroads than the provisions 
that relate to all '* common carriers." But that this is not due to any 
doubts as to its own authority is plain from the act of March 8, 1878, 
which was dictated solely by a humanitarian regard for the rest, 
feeding and watering of cattle transported by rail or water. {Stat, 
at Large, XVH., 584, 585.) For years, however, congress has debated 
a considerable number of proposed laws of every kind which cut 
deeply into the autonomy of railroad companies and in part also 
10 




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146 CONSTITUTIONAL LAW OF THE UNITBD STATES. 

Under the authority of congress as to the subjects of 
commercial intercourse, the laws which regulate the im- 
port and export of certain commodities and the move- 
ments of certain persons have been passed. Many of the 
powers of congress under this division of its authority 
enure also to the states from their police power. Restric- 
tions on the importation of poisons and explosives, pro- 
hibitions of the introduction of indecent publications and 
pictures, etc., could be imposed also by the states. The 
application of the principles of constitutional law in this 
raspect may easily lead in disputed questions to no slight 
difficulties. As far as persons are concerned, the author- 

eharply invade the realm of legislation which the states have thus 
far been permitted to monopolize. The opposition of material inter- 
ests, however, and especially the general political considerations 
against such action, have thus far defeated every effort for a more 
uniform regulation of the railroad system by federal legislation. As 
late as the spring of 1884, congress considered, but again without re- 
sult, a number of proposals as to railroad freights, a matter which 
Ley en justly designates as the ** true germinal point of the so-called 
railroad question" in the United States. It will probably depend to 
a large extent upon the conduct of the railroad companies themselves 
as to whether, or how soon, the tendency manifested by such at- 
tempts at legislation wiU finally, however, begin to triumph over 
difficulties to be overcome. "What decisive action congress might 
think itself authorized to take, under certain circumstances, appears 
from the act of January 31, 1862, which authorized the president to 
take possession of aU railroads and telegraph lines, as far as he 
thought public safety required, and invested the secretfuy of war 
with sole control of the transportation of troops and of all military 
stores. (Stat at Large, XII., 834.) See J. F. Lacey, Digest of 
American Railway Decisions, Chicago, 1875; E. L. Pierce, Law of 
Railroads, Boston, 1881 ; D. Rorer, A Treatise on the Law of RaH- 
ways, 2 vols., Chicago, 1884; A. v. d. Leyen, Die Nordamerikaniscken 
Eiseribahnen in ihrentoirthschaftlichen und politischen Beziehungen, 
Leipzig, 1885. 

As to the telegraph companies, the federal government has some- 
what more extensive rights. An act of July 24, 1866, grants the tele- 



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THE FEDERAL CONSTITUTION. 147 

ity of the states goes to the full extent required by the 
"law of preservation." As they may protect themselves 
by their health and quarantine laws against the introduc- 
tion of contagious disease, so they may guard themselves 
likewise against the "moral pest" of vagabonds, paupers 
and criminals. But apart from this the regulation of 
immigration is the exclusive domain of congress. Thus, 
for example, a state cannot prohibit the immigration of per- 
sons (Chinese, for instance) because it fears that they will 
not obey the laws, or because it regards them, for economic 
or other political reasons, as a pernicious element of the 

graph oompanies organized under state laws the right of way along 
X)08t-road8 or military lines, along navigable streams and over public 
lands, and permits them to take from the public domain wood, stone 
and other material for the building of their lines and station-houses, 
provided they bind themselves to send government telegrams ahead 
of aU other dispatches at rates fixed by the postmaster-general, and 
to seU their lines upon demand by the government to the United 
States, at a price to be determined by five impartial men, two of 
them named by the postmaster-general, two by the company, and 
the fifth by the four. I am not, however, aware that any telegraph 
line has actually been bought under this law. Telegraphs and rail- 
roads are both still private enterprises and private property, but the 
continuous consolidation of these important instruments of com- 
merce in the hands of mammoth corporations disturbs public opinion 
more and more. Discontent is widespread and has at times attained 
such proportions that the "monopolies" would probably have been 
already broken, if it were dear what should take the place of the ex- 
isting circumstances, and if an agreement could be reached on this 
point. As long as the appointment of nearly fifty thousand post- 
masters is not wholly withdrawn from party x)olitics, the thoughtful 
part of the people wiU scarcely be persuaded to add to the post- 
office depaitment the telegraph employees, who are counted by 
tens of thousands (the Western Union Telegraph Company alone 
had, in 1883, twelve thousand nine hundred and seventeen). Pres- 
ident Qrant recommended this in his annual message of December, 
1871. 



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148 CONSTITUTIONAL LAW OF THE UNITED STATES. 

population.* Whenever congress exercises its legislative 
authority in this respect, it must always be in a general 
way, treating all the states alike.' This is, indeed, no- 
where expressly declared; but it would be opposed to the 
general spirit of the constitution to give certain parts of the 
Union a separate and distinct position, because this would 
too readily excite at least the suspicion that the conclu- 
sions of congress were influenced by partiality for one 
section or dislilce of another. 

So far as the regulation of trade is concerned, this 
fundamental doctrine of complete equality is expressly 
ordained in regard to certain matters. Art. I., sec. 9, § 5, 
provides that ** no preference shall be given by any regu- 
lation of commerce or revenue to the ports of one state 
over those of another." And it declares further: "Nor 
shall vessels bound to or from one state be obliged to 
enter, clear or pay duties in another." The freedom from 
taxes of the entire coast trade and of the commerce on 
inland waters is thus firmly established by the consti- 
tution, and it has been rightly said that this provision 
alone is sufficient to show the immense worth of the 
Union.' 

§ 39. Nattjbalization. Immediately after the provision 
as to the regulation of trade and commerce, the right is 
granted to congress "to establish a uniform rule of 
naturalization." To this is added the power already men- 

1 The states are not^only not authorized durectly to prohibit immi- 
gration, but thej cannot even indirectly hinder it by laws about the 
landing of passengers from foreign ports. Chy Lung vs. Freeman, 
92U. S. (Otto, n.), 272. 

> A law of May 2, 1882, "suspended " the immigration of Chinese 
for ten years. 

s In this connection it should also be said that in the clause already 
discussed as to exports, the states are also forbidden to tax imparts. 



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THB FEDBBAL OONSTITUTIOlir. 149 

tioned, to enact a uniform bankruptcy law, and further 
provisions relating to trade and commerce follow. It 
seems from this juxtaposition that the authors of the 
constitution regarded naturalization especially from the 
standpoint of the industrial interests, and that therefore, 
in the adoption of this provision, they had in mind mainly 
the encouragement of immigration. In this sense, too, 
congress has made use of this power. The debt of the 
United States to this for their unexampled development 
is well known. If the efforts of the different nativist 
parties and especially of the " Know Nothings " in the . 
fifties to substantially increase the time of probation, 
fixed at five years (they wished to make it twenty-one), 
had been successful, the stream of immigration would 
unquestionably have been very considerably reduced.* 
From a legal point of view, it need be observed only 
that the power of congress is exclusive,* but is of course 
restricted to the grant of the right of citizenship of the 
United States.' 

Among the other powers of congress over commercial 

1 A person must have resided five years in the United States and 
at least one year in the state or ten*itory where he wishes to be 
naturalized. Two years prior to natwalization, the immigrant must 
declare under oath in court his wish to become a citizen. This is not 
necessary if he came to the United States at least three years before 
attaining his majority. The widow and the minor children of an 
immigrant who had declared his intention to be naturalized in the 
manner required, need only take the prescribed oath to obtain the 
right of citizenship. Children of immigrants obtain citizenship 
without naturalization, if they reside in the United States and at 
the time of their parents' naturalization are stiU in their minority. 
Titles of nobility must be expressly renounced at the time of natural* 
ization. 

i Chirac vs. Chirac, Wheaton, EL, 259, 269. 

>The peculiar consequences of the right of the states to grant state 
citizenship have already been discussed. 



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160 CONSTITUTIONAL LAW OF THB UNITBD STATES. 

intercourse are those in regard to money, already stated 
in another connection. 

§ 40. Measures and Weights. So far as the right " to 
fix the standard of weights and measures" is concerned, 
it need but be noted that it is not an exclusive one. 
Congress may make a uniform system of weights and 
measures obligatory, but it has contented itself with legal- 
izing the metric system, by an act of July 28, 1866, and 
with fixing the relations of the customary weights and 
measures (mile, foot, inch; acre, yard, inch; gallon, quart, 
gill; pound, ounce, grain). 

§ 41. The Mails. Of the power given congress " to 
establish postoffices and post-roads," Pomeroy (p. 264) 
rightly says that the words express the intention in the 
most insufficient manner. "To create and regulate the 
entire postal system of the country is the evident intent." 
Accordingly congress has always done so without any 
opposition. But this clause has given rise to a more sig- 
nificant controversy, namely, whether congress can simply 
convert existing roads into " post-roads " or whether it 
itself may build post-roads. It has done the latter, but 
very seldom.* 

1 The act of AprU 30, 1802, for the admission of the state of Ohio, 
involves a claim of the right to build sach roads, but with an impor- 
tant limitation. Whether congress thought this limitation was re- 
quired by expediency in the particular case, or generally as a matter 
of constitutional law, does not appear. TJie act provides that the 
twentieth portion of the net proceeds from the sale of public lands 
within the state should be applied to the building of roads ** leading 
from the navigable waters emptying into the Atlantic, to the Ohio, to 
the said state, and through the same, such roads to be laid out under 
the authority of congress, imth the consent of the several states through 
which the road shall pa^s" Stat, at Large, II., 175. The building of 
the Cumberland road, which was authorized by act of March 29, 1806 
(Ibid,, 357), and its maintenance gave occasion to repeated and very 
indaive discussions of the question as to how far the power of the 



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THE FEDKEAIi CONSTITUTION. 161 

§ 42. Protection of Intellectual Peoperty. The 
power to do this quite naturally follows the powers as 
to commerce, because this has to do to a certain extent 
with commercial intercourse. Congress may " promote 
the progress of science and useful arts by securing for 

United States to build roads extended. President Monroe, in a mes- 
sage of May 4, 1822 (Statesman's Manual, I., 492-537), defended the 
view "not only that the power necessary for internal improvements 
has not been granted, but that it has been clearly prohibited ; " but he 
adds : * * To the appropriation of the public money to improvements hav- 
ing these objects [to facilitate the operations of war and the transpor- 
tation of the mailj in view, and carried to a certain extent, I do not 
Bee any well-founded constitutional objection." Jackson adopted 
Monroe*6 views in substance; but, in the application of the principles 
laid down by Monroe, Jackson took his position more decisively with 
the state's-rights party, and emphasized more sharply ** the general 
principle that the works which might be thus aided should be of a 
general, not local, national, not state, character." See his Maysville 
Road Veto of May 27, 1830; Statesman's Man,, I., 719-728. Subse- 
quently, the interest in the question, as one of constitutional law, 
became much less. The i)ower of the United States to construct 
roads is deduced, however, not only from this clause about post-roads, 
but also from the duty of taking care of the country's defenses, and 
from the right to regulate commerce. The railroads, the building of 
which was aided in any way whatever by the United States, are under 
an unconditional legal obligation to carry the mails at prices fixed by 
congress. All railroads which carry the mail must do so, if required, on 
every train, and can make no extra charge for the transportation on 
such train of mail matter, or of the persons in charge of it. If the post- 
master-general can make no bargain, such as the law allows, with a 
railroad to carry the mails, he is authorized to send the letters by mes- 
sengers on horseback, and the rest of the mail by wagon. (Contracts for 
mail carrying are let, after public advertisement, to the lowest bidder, 
if he gives a sufficient bond. Yet a letting of this sort is obligatory 
only where the mail is not carried by rail or steamer. It is only letters 
which must be sent by mail. Packages are usually forwarded by 
express companies, and latterly the larger newspapers have availed 
themselves in great measure of these means, because this costs less 
than sending the papers by mail. The act of June 8, 1872, introduced 
the money-order system for sending money by mail. 



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152 CONSTITUTIONAL LAW OF THE UNITED STATES. 

limited times to authors and inventors the exclusive right 
to their respective writings and discoveries.'' The author- 
ity of congress to promote art and science is thus a very 
limited one, but as far as the power extends it is exclusive 
and plenary, i, e., it extends also to the enactment of 
special laws. The exclusive right acquired under na- 
tional law does not, however, in itself, embrace an unlim- 
ited right to use and sell an invention.^ For, in this re- 
spect, the possessor of a patent is subject to state laws, 
which may impose conditions upon the use of the article 
and may, under some circumstances, even forbid its use as 
dangerous to the community. Copyrights and patents 
under the existing law are granted citizens and inhab- 
itants of the United States for seventeen years. They 
may be extended on a proper petition for fourteen years 
more. The widovr and children of a deceased author or 
inventor can also obtain this extension. The words 
"authors and inventors'' and "writings and discover- 
ies" have received an extraordinarily broad interpreta- 
tion in legislation. All kinds of printed matter, mechan- 
ical reproductions of works of art of every sort, photo- 
graphs, etc., may be legally protected. According to 
recent decisions of the supreme court {United States vs, 
Stefens and United States vs. Wittemann^ 1879) congress 
cannot, under this clause, enact laws as to trade-marks. 
The right to do so may, however, be deduced from the 
provision as to the regulation of commerce, but the trade- 
marks would then be protected only in inter-state com- 
merce. In the separate states, however, trade-marks are 
protected by the common law. Foreign countries are 
not considered at all in the legislation on copyrights and 

1 The common law grants an author protection only against the 
unauthorized publication of his manuscript,, but not an ezdusive 
right of property in his published work. 



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THE FEDBBAL CONSTITUTION. 153 

patents.^ The agitation for international agreement on 
these subjects has been vigorously carried on of late, but 
as yet without result. 

JUSTICE 

§43. General Powers. After the observations already 
made as to the organization of the judicial system, the 
right of constituting inferior tribunals (art. L, sec. 8, § 9) 
needs no further commentary. 

The next paragraph in this section grants congress a 
legislative authority as to piracies and felonies committed 
on the high seas and oflFenses against the law of nations. 
To give a more distinct idea, we must treat these provis- 
ions in connection with those found in other parts of the 
constitution which also relate to 'the administration of 
justice. 

It belongs to congress to fix the penalties for piracies 
and for felonies committed on the high seas and to define 
what shall be considered as crimes falling under either of 
these two heads. As piracy is covered by international 
law, congress is not bound to define it; but whatever is 
made piracy by international law is subject to the penalty 
for piracy fixed by congress.^ It is, of course, also au- 
thorized to declare certain crimes to be piracies, and to 
punish them as such, which by international law are not 
piracies.' Various views have been held as to the correct 
interpretation of the expression " high seas " in this clause. 
It is, however, established that the authority of congress 
to enact penal laws is not restricted to crimes committed 
on the high seas, but that it is co-extensive with the crim- 
inal-law jurisdiction of the admiralty and maritime courts, 

1 Brown t». Dvuhespfie, Howard, XIX., 183. 

2 U. 8. vs. Smithy Wheaton, V., 15^. 
s T?ie Antelope, Wheaton, X., 66. 



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154 CONSTITUTIONAL LAW OF THE UNITED STATES. 

a jurisdiction which, according to art. III., sec. 2, § 1, is 
within the scope of the federal sovereignty. The federal 
supreme court has, moreover, decided that the large in- 
land lakes and the navigable rivers also fall within the 
jurisdiction of the admiralty and maritime courts.^ 

The act of June 30, 1864 {Rev. StaL, § 5413), defines 
what is meant by the '• securities and current coin of the 
United States," the counterfeiting of which congress may 
punish by law. 

§ 44. Treason. Finally, the crime of treason against 
the United States falls within the criminal jurisdiction of 
congress. Art. III., sec. 3, sets forth : " Treason against 
the United States shall consist only in levying war against 
them, or in adhering to their enemies, giving them aid 
and comfort. No person shall be convicted of treason 
unless on the testimony of two witnesses to the same 
overt act, or on confession in open court. The congress 
shall have power to declare the punishment of treason; 
but no attainder of treason shall work corruption of blood 
or forfeiture, except during the life of the person at- 
tainted." Determining what shall be treason lies entirelv 
without the sphere of congress, for this the constitution has 
itself done with painful care. Congress has solely the 
power of fixing the penalty for the crime. The interpre- 
tation of this highly significant provision of the consti- 
tution is to be sought, not among the laws of congress, 
but amid the decisions of the courts.^ These decisions lay 
down two important principles: first, the crime of "con- 

i The Hine, WaUace, IV., 555. See S. R. Betts, Admiralty Practice, 
N. Y., 1838; E. C. Benedict, Am. Admiralty, 2d ed., N. Y., 1870; R. 
Desty, Admiralty and Shipping, San Francisco, 1879; T. M. Etting, 
Admiralty Jurisdiction of the United States, Phila., 1879. 

2 An act of April 30, 1790, contains, indeed, a definition of treason , 
but the substance of it is a verbal transcript of the constitutional pro- 
vision. Compare Revised Statutes, sec. 5331. 



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THE FEDEBAL CONSTITtmOK. 155 

structive treason," which in England has caused more 
than one noble head to fall below the axe, does not exist 
in the United States;* second, only a citizen of the 
United States can commit treason, for the crime presup- 
poses allegiance.^ Apart from these principles, the de- 
cisions, gauged by both moral and political standards, 
present many striking features. War is " levied " as 
well by inciting war as by carrying on war. But a con- 
spiracy to overthrow or coerce the government, as well 
as the enlistment of men for such a purpose, is not, how- 
ever, treason. Treason is committed only when persons 
assemble for the purpose of carrying out a treasonable 
plan. In such a case, all are guilty of treason who have 
taken part in the meeting, even in the slightest degree, 
and if ever so far removed from the place of action, pro- 
vided they are connected with the general conspiracy.* 
The act alone does not of itself constitute treason; 
there must also be a treasonable intent. The intent 
need not, however, be the overthrow of the government. 
Even the attempt to prevent the execution of a single 
law, or to compel its repeal, is treason, if force is used 
and the resistance is of a public and general character. 
The amount of force used is a matter of indifference. 
These observations explain the provision — at first sight a 
curious one — of the act of July 17, 1862, that treason 
is punishable either by death or by imprisonment in 
the penitentiary for not less than five years and a fine 



1 See my Constitutional History, V., 293, 293. 

2 U. S. vs. Wiltberger, Wheaton, V., 79. The act of April 80, 1790, 
already quoted, is in unison with this. On the other hand, quite a 
modified doctrine is stated in U. S, vs. Oreathou^, 2 Abbott's U. S. 
Rep., 380. See Hurd, Theory of Our National Existence, 61. 

*Ex parte BoUman, Cranch, IV., 75. 



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156 OONSTITUTIONAL LAW OF THE UNITBD STATES. 

of at least $10,000.* From the power of congress to fix 
the punishment for treason, its power also to fix punish- 
ments for crimes of lesser degree but of like character, 
such as insurrection, conspiracy, etc., is inferred.* The 
expression " attainder of treason " must be understood as 
referring only to a judicial sentence. " Bills of attain- 
der," that is, legislative sentences, which at one time 
played such an important part in English history, are 
unconstitutional. 

The authority of congress is limited to cases of treason 
against the United States. The clause providing for the 
extradition of fugitive criminals (art. IV., sec. 2, § 2) 
shows that the constitution recognizes the possibility of 
treason against a single state. This is an important mat- 
ter, for the usual assumption is that treason can be com- 
mitted only against a sovereign power. If the separate 
states are, however, really "sovereign," and if treason 
can be committed against them, there may then be a 
dangerous and unfair conflict of duties for the individual 

^The act of April 80, 1790, provided that every traitor should 
" suffer death." Stat, at Large, I., 112. The same act further de- 
clared that whoever had knowledge of a treasonable crime, and did 
not as soon as possible give information of it, should ** be adjudged 
guilty of misprision of treason and be punished by imprisonment of 
not more than seven years and by a fine of not more than $1,000." 

2 The civil war gave extensive occasion for the use of this implied 
power. On July 81, 1861, an ** act to define and punish certain con- 
spiracies," and on August 6, 1861, an act in regard to the enlisitment 
of soldiers and sailors " to engage in armed hostility against the 
United States," became laws. The penalties provided by these laws 
are extraordinarily mild. Then followed the law already mentioned, 
the act of July 17, 1862, " to suppress insurrection, to punish treason 
and rebellion, to seize and confiscate the property of rebels, and for 
Obher purposes," and finally, on February 25, 1868, an ''act to pre- 
vent corre(q>ondenoe with rebels." Stat, at Large^ Xil., 284, 817, 
539, 696. 



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TH» FKDlSRAIi OOWOTITUTION. 157 

citizen. This was pointed out when the constitution was 
being drafted and when its adoption was being discussed.* 
This appeared on a broad stage during the civil war. 
Many southerners, like General Robert E. Lee and Alex- 
ander H. Stephens, the vice-president of the Confederate 
States, were opposed to secession, but, after secession was 
once ordained by their respective states, they declared them- 
selves not only willing to go with their states, but bound 
to go with them unless they were to be guilty of treason, 
for they owed allegiance to their respective states and 
indeed only to them. The federal government naturally 
refused to admit this, and Chief-justice Chase decided, 
in Shortridge vs. Macon^ that no " rebel " could defend him- 
self from the charge of treason by pleading the ordinances 
and commands of his state. Logically, however, this 
question, on account of its connection with other prob- 
lems of constitutional law brought to the surface by the 
civil war, leads to a whirlpool of conflicting conclusions. 
But a further discussion of the question (upon which 
Hurd throws a penetrating light in the book already 
cited) must not be attempted here. This remarkable 
fact, however, should be stated, that the doctrines of 
constitutional law in relatiqn to treason were not clearly 
stated and sharply defined by reason of the civil war, but 
were rather obscured thereby. 

§ 45. Other Ckiminal Law Powers. Further express 
authorizations to enact criminal laws are not to be found 
in the constitution. It is, however, self-evident, and it 
has never been seriously denied, that congress may not 
only punish all violations of the federal laws, but may 
also impose penalties upon acts which, if committed with 
impunity, would render impossible the effective exercise 

iSee EUiot, L, 882, 888; Y., 48a 



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158 CONSTITUTIONAL LAW OF THE UNITED STATES. 

of its constitutional powers.^ This right is based upon 
the provision authorizing congress "to make all laws 
which shall be necessary and proper" to carry out the 
powers belonging to it or to any other factor of the gov- 
ernment (art. L, sec. 8, § 18). That the constitution did 
not intend to charge the respective states with the duty 
of enforcing the observance of the federal laws by means 
of their own penal laws is so certain that, according to 
the decision of the federal supreme court in Martin vs. 
Hunter (Wheaton, I., 304), not even a part of the crimi- 
nal-law powers of the United States can be conferred 
upon the state courts.* 

§ 46. Impeachment. Impeachment is a judicial pro- 
ceeding, and its discussion therefore belongs to this chap- 
ter on the powers of congress in regard to the adminis- 
tration of justice. It has undoubtedly nothing in common 
with the powers hitherto discussed, and is absolutely 9ui 
generis. Congress, as such, is not in question. It is not 
a legislative but a judicial power which comes into play. 
In this proceeding the two houses have entirely different 
functions: the house of representatives acts as accuser, 
and the senate as judge.' It is evident, therefore, that 
the constitutional provisions concerned cannot be inter- 
preted by judicial decisions, because any controverted 
questions under them do not come before ordinary courts. 

1 The latter principle was established by the decision of the supreme 
court in U, S. vs. Marigold. Howard, IX., 560. 

2 See T. F. Waterman, U. S. Digest of Criminal Cases, N. Y., 18T7; 
J. P. Bishop, Criminal Law, 6th ed., 2 vols., Boston, 1877; Ibid., 
Criminal Procedure, 3d ed., 2 vols., Boston, 1880 ; F. Wharton, Crimr 
inal Pleading and Practice, 8th ed., Phila., 1880; Ibid., American 
Criminal Law, 8th ed., 4 vols., Phila., 1881; R. Desty, American 
Criminal Law, San Francisco, 1883. 

'Art. I., sec. 2, § 6, and art. L, sea 8, § 6. Both dauses use the 
phrase, "the sole power." 



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THE FEDERAL CX)NSTITUTION. 



159 



Impeachment is a political process. The decision as to 
what the law is is made by the powers which act in this 
process as accuser and judge, inasmuch as they carry out 
the constitutional provisions in accordance with the in- 
terpretation which seems to them just. There is no appeal 
from their decision. 

The constitution presupposes that it is well known 
what an impeachment is.. And as it is a technical ex- 
pression, this implies that the proceeding known in 
English law by this name is meant. But it is by no 
means to be said that the English idea must be accepted 
without any modification. Whether it has been changed, 
and if so how, must be deduced from the further pro- 
visions of the constitution on this point, as interpreted by 
both houses of congress, when engaged in their respective 
functions in conducting impeachments. 

Art. II., sec. 4, reads: "The president, vice-president, 
and all civil officers of the United States shall be re- 
moved from office on impeachment for and conviction 
of treason, bribery, or other high crimes or misdemean- 
ors." The wording of this paragraph raises a most sig- 
nificant question. Farrar (p. 436) thinks that emphasis 
must be laid upon the eflfect which conviction is to have 
upon the designated persons impeached for the causes 
assigned, and thus he comes to the conclusion that any 
other person may also be impeached. But since there is 
nowhere else in the constitution anything said as to who 
shall be subject to impeachment or in what cases it shall 
come to pass, while another paragraph contains more 
definite provisions as to the consequences of conviction, — 
in view of this it has always been the opinion of the most 
prominent jurists and statesmen as well as of the entire 
public, that the clause cited must be held to settle these 
two questions, and, of course, that only the persons named 



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160 CONSTITUTIONAL LAW OF THB UNITED STATES. 

are subject to impeachment and they only for the causes 
mentioned. This must be held to be the valid constitu- 
tional law, as long as the house of representatives does 
not impeach, and the senate does not hold itself compe- 
tent to try, under impeachment, a person who is not a 
" civil officer " of the United States. The two houses did 
not at first agree as to the limit of the power. Senator 
Blount was impeached by the house in 1798, but the sen- 
ate, by a majority vote, declared itself incompetent to 
hear the case. It is self-evident that neither the house of 
representatives nor the senate is bound by this decision. 
But it will scarcely be questioned that members of con- 
gress are not "civil officers" of the United States, within 
the meaning of this constitutional provision. It has 
never been disputed that judges come under this designa- 
tion. It has been asserted, however, that impeachment 
is a^lmissible only as long as the person concerned remains 
in office. One effect of this would be that every official 
threatened with impeachment could esoajK) it by resigna- 
tion. The house of representatives decided against this 
doctrine, in 1876, by the impeachment of Secretary of 
War Belknap. 

There have been more vigorous discussions over the 
proper interpretation of the constitutional provisions in 
regard to the grounds of impeachment. It is agreed that 
the incriminating acts must have some relation to the 
official action of the pei-son concerned, since impeach- 
ment aims at the preservation of public interests. But 
the two houses have by no means assentod to the view, 
so energetically defended, that only official acts present 
a constitutional ground for an impeachment. Just as 
little have they ever held that the words " high crimes 
and misdemeanors " are to be understood in their technical 
sense, and that an impeachment can be based only upon 



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THS FEDBSAL 00N8TITCTI0N. 161 

acts which the federal laws have expressly declared to be 
"felonies" or "misdemeanors;" that is, "indictable of- 
fenses." Some authorities — and they agree in this with 
congress — are, nevertheless, of the opinion, that the words 
are not to be understood in the misty and vague sense 
they have in ordinary speech, but are to be interpreted 
by the rules of the common law. This opinion will never 
go unquestioned, because the very existence of a general 
" common law " of the United States is strenuously de- 
nied.^ Practically the matter takes this form, that the 
individual views of the then members of congress must 
always determine what they will regard as high crimes 
and misdemeanors within the meaning of the constitu- 
tion. Neither the arguments of authorities on jurispru- 
dence nor precedents can bind them any further than 
they wish to be bound. 

As to the effect of impeachment, art. I., sec. 3, § 7, 
says: "Judgment in cases of impeachment shall not ex- 
tend further than to removal from ofSce and disqual- 
ification to hold and enjoy any ofSce of honor, trust 
or profit under the United States; but the party convicted 
shall, nevertheless, be liable and subject to indictment, 
trial, judgment and punishment according to law." It is 
evident from the second clause that the purpose of im- 
peachment is not the punishment of the guilty person, 

1 Apart from this, the common law, as is well known, plays nearly 
as large a part in American as in English legal life. An American 
ccMnmon law may therefore be spoken of even by one who, like my- 
self, holds the opinion stated in the text, provided that the expression 
IB understood to mean the common law in the United States and not 
the common law of the United States. On the common law in the 
United States, see J. D. Wheeler, American Common Law, 8 vols., 
N. Y., 1888-1886; W. A. Cocke, Common and Civil Law in the U. 8. 
Courts^ N. Y., 1871; O. W. Holmes, Jr., T?ie Common Law, Boston, 
1881. 

11 



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162 OONSnTUnONAL law of TUE united 8TATE8. 

but the protection of public interests from danger or in- 
jury by abuse of official power, neglect of duty or con- 
duct incompatible with the dignity of the office. The 
punishment of all crimes and punishable misdemeanors 
according to law remains entirely with the ordinary 
courts, in the regular course of judicial proceedings. As 
to the consequences of a conviction in an impeachment 
trial, the wording of the constitution admits of a two- 
fold interpretation. In theoretical circles it is usual to 
assume that, according to the constitution, conviction in- 
capacitates the culprit for filling any federal office. This 
view is, however, not only not shared by the most pro- 
found jurists, but the senate has already in one case (that 
of John Pickering, 1804) passed sentence of only a re- 
moval from the office then held. The theory which has 
also been advanced, that a less penalty than removal from 
office may be imposed (Farrar, pp. 434, 435), will probably 
never be approved by the senate. It is founded, indeed, 
only upon far too subtle verbal criticism, and it conflicts 
with the very substance and purpose of impeachment. 
In cases of impeachment the president has no right of 
pardon (art. II., sec. 2, § 1). 

As to the method of procedure, the constitution con- 
tains three provisions. The senators shall be on oath or 
affirmation when the senate meets as a court of impeach- 
ment; if the president is impeached, the chief justice of 
the supreme court shall preside; and for conviction a 
two-thirds majority of all the members present shall be 
necessary (art. I., sec. 3, § 6). Everything else as to pro- 
cedure is left to congress.* But it is self-evident that con- 
gress is bound by all the provisions of the constitution in 
point. Tiffany's view (p. 354) is therefore to be rejected 

1 See the detailed description in Story, § 807 et «eg. 



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THE FBDBRAL OOHSlTinTION. 163 

witboat question. He holds that congress may arrest an 
impeached president and suspend him from ofl^ce during 
the proceedings. But this would place the president, who 
is a co-ordinate, and within his constitutional sphere an 
independent, factor of the federal government, completely 
in the hands of a hostile majority of both houses of con- 
gress.* Pomeroy (p. 494) may be cited against Tiffany. 
He holds that, in the case of an official whoje term of 
office is not fixed by the constitution,* the question is 
to be decided upon grounds of equity and expediency, be- 
cause there are no insuperable constitutional objections 
to suspension in such a case. 

INTERNATIONAL RELATIONS AND MILITARY SOVER. 
EIQNTY. 

§ 47. International Relations. The powers of con- 
gress in regard to international relations are few in num- 
ber. The first provision on this point which authorizes 
congress ^^to define and punish . . . offenses against the 
law of nations " (art I., sec. 8, § 10), considered from a cer- 
tain point of view, should be discussed in the paragraphs 
concerning justice. The right in this case is clearly also 
a duty, and the duty has been met and discharged by the 
passage of so-called neutrality laws, which have often 
played an important part in the inner history of the 
United States.' 

The other powers of congress in this respect all relate 
to the condition of war, and must be discussed in con- 

^The disposition prevailing against Andrew Johnson in 1868 leaveB 
little room for doubt that oongress would have proceeded against 
him in this way if it had considered itself able to do so. 

3 Judges are thus ezdaded. 

s The other laws enacted by Tirtae of this provision need no spedal 
mention. 



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164 ooNsnrunoyAL law of thb unttbd states. 

neotion with the question of military sovereignty. Moie- 
aver, foreign relations are placed in charge of the presi- 
dent, with the co-operation of the senate. They will 
therefore be treated in the chapter on the powers of the 
executive. Here it is necessary simply to lay stress on 
the fact that foreign relations are the exclusive domain 
of the federal government. The constitution does not 
content itself with sharing among the different factors 
of the national government all the powers concerned. 
It expressly withholds them from the states. The latter 
are absolutely forbidden to enter into any treaty, alliance 
or confederation (art. I., sec. 10, § 1). They can make 
agreements or compacts of any kind whatever with a 
foreign power only with the consent of congress.* 

§ 48. MiUTABY Sovereignty. In a military aspect the 
consolidation or nationalization of the Union has not been 
carried as far as in reference to the regulation of peaceful 
relations with foreign powers. Experience has shown, 
however, that the constitutional provisions on this point 
render the highest development of national strength pos- 
sible. 

The right " to declare war " belongs to congress alone 
(art. I., sec. 8, § 11). Of course, the United States may 
get into a war without congress's having declared war. 
War is, in the first place, a state of fact, the appearance 
of which cannot be made wholly dependent, by any con- 
stitutional provisions whatever, upon the pleasure of one 
of the nations concerned. As far as that is possible, 
however, congress has the exclusive right of the initiative. 

1 The other oonstitutional provisiooB on this point will be mentioned 
later in another connection. The '' agreements and compacts ** are 
distinguished from '' treaties and alliances " in this: that the latter 
have a more permanent character, while the former have only a 
momentary purpose and are ended when it is accomplished. Holmes 
V8, Jenni8on, Peters, XIV., 540, 572. 



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TOE FEDERAL CONSTITUTION. 165 

If a foreign power begins war against the United States, 
then it is not only the right, but the duty, of the presi- 
dent to oppose the enemy with all the means placed at 
his disposal by the constitution and the laws. But he is 
not to regard every act of hostility as the opening of an 
aggressive war and thereupon begin on his own part act- 
ual war. It is for congress to decide whether he has ex- 
ceeded his constitutional authority in this respect, or has 
actually found himself face to face with an accomplished 
fact by the initiative of a foreign state.* That the latter 
may be the state of the case is expressly acknowledged by 
the constitution's providing that without the consent of 
congress " no state shall . . . engage in war, unless act- 
ually invaded, or in such imminent danger as will not 
admit of delay " (art I., sec. 10, § 3). The states can no 
more begin war than can the president; they can take 
into account the presence of actual facts only as far as 
the inalienable right and imperious necessity of self- 
defense demand it. If a state gets into serious trouble of 
this sort when congress is not in session, the president is 
in duty bound to call forth the entire federal power, if 
necessary, for its protection ; for the United States must 
" protect " every state " from invasion " (art. IV., sec. 4).' 
It appears, therefore, that the right to declare war may 
become a duty, and further, that this right implies the 
powers needed for the effective conduct of a war.* If the 

1 The importanoe of this qaestion appears from the ante-bellum 
history of the Mexican war, which was quite certainly brought about 
by the president in an unconstitutional way. Bee my Constitutional 
History, m.. chs. 6-9. 

3 The two clauses last mentioned apply in case of threats or acts of 
Tiolenoe, not only by foreign enemies, but also by sister states. 

*The question as to whether a ** war " against rebellious states was 
admissible or even possible, constitutionally, has been discussed wit^ 
much acuteness and mnch learning. Many stout Tolumes have been 



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166 CONSTITUTIONAL LAW OF THE UNITED STATES. 

most essential of these powers were expressly granted to 
congress, this was done, not only to save all doubt, bat 
because they must be vested in congress in time of peace 
as well, partly for the sake of preparing for war and 
partly for other reasons. 

The right to grant letters of marque and reprisal, con- 
ferred upon congress in the same paragraph which treats 
of the right to declare war, is expressly withheld from the 
states (art. L, sec. 10, § 1). This is not the case as to the 
authority to enact laws concerning captures on sea or land, 
as this right in its very nature is an exclusive one. The 
property of an enemy can be legally confiscated only in 
accordance with laws passed by congress,* but the power 

fiUed with demonstrations pro and con. Even if space aUowed, 
howeyer, farther discussion of this controverted question must be 
waived. It certainly is not without interest and it has a practical* 
important side. Thus the blockade imposed by Lincoln gave foreign 
powers a formal legal basis for the recognition of the Confederate 
States as a war-making power. But from the stand-point of constitu- 
tional law, the question at bottom involves only an idle exercise of the 
wits. If abstract logic be foUowed, it becomes very easy to construct 
an interminahle labyrinth of contradictions. Examine it more closely 
and the labyrinth is only a house of cards. The American statesmen 
upon whom devolved the duty of overthrowing the reheUion did not 
from the outset keep clearly enough in view the fact that it was not 
a law-suit, which should or could be carried on in accordance with 
constitutional provisions, but a state of fact, which had as its legal 
basis, in principle, so far as the rebels were concerned, the annulment 
of the entire constitution. Legally they were and they remain 
rebels. Whether and how far it was expedient and necessary, to give 
the form of a war, conducted according to the laws of nations, to the 
attempt to subdue the rebels,— an attempt which was a constitu- 
tional right and duty,— depended solely on matters of fact and has 
nothing to do with constitutional law. As far as the rebels were 
concerned, the whole constitution was reduced for the federal gov- 
ernment to the single right and duty of forcing them back to ol^i- 
«nce ; all else was a question of policy. 
' Brown vs. United States, Cranch, Vm., 110. 



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THE FEDERAL OONSTITUTION. 167 

of confiscation possessed by congress is subject to no legal 
restriction of any kind whatever. This clause has be- 
come of great practical significance, because the right of 
emancipating the slaves in the rebellious states was 
deduced from it. 

The right to raise and support armies and to provide 
and maintain a navy (art. I., sec. 8, §§ 12, 13) is not en- 
tirely exclusive in congress. The states are forbidden 
only to " keep troops or ships of war in time of peace 
. . . without the consent of congress" (art. I., sec. 
10, § 3). But if, in times of war, the states are free to 
act independently in this respect, yet this in no way lim- 
its the power of congress to call forth the force of the 
people under the immediate and sole control of the fed- 
eral government in whatever measure it sees fit. It alone 
is to decide upon how strong the army and navy should 
be and how the men are to be got. On account of the 
smallness of the regular forces needed in ordinary times — 
at present not quite thirty thousand soldiers, seven thou- 
sand five hundred sailors (officers excepted), and one 
thousand five hundred marines — free enlistment supplies 
all the men needed. During the civil war, however, con- 
gress made use of conscription.* The constitutionality 
of the law was, it is true, vigorously contested. The 
sound sense of the people was, however, so decisively op- 
posed to the legal subtleties, intended to prove the law's 
unconstitutionality, that the strange doctrine gained no 
foothold, despite some decisions in its favor. This asser- 
tion, that congress was not authorized to act solely upon 
grounds of necessity and expediency, was the more sur- 

1 Able-bodied immigrants from twenty to forty-five years of age, 
who had declared under oath their intention to become citizens, were 
made liable to conscription just as citizens were. For certain excep- 
tions and more detailed information, see Stat, at L., XLL, 781 et aeq. 



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168 ooNsnxunoNAL law of the united states. 

prising, because the constitutional provisions concerned 
have always been interpreted to mean that congress can 
do everything demanded by the defense of the country. 
Upon these provisions have bQen based the right to build 
forts and all other fortifications, the right to found and 
maintain the military school at West Point and the naval 
school at Annapolis, the right to grant rewards and even 
pensions to soldiers, etc.* 

Better founded occasions for constitutional criticism 
might be fpund, indeed, in the methods adopted by the 
federal government to create, before the conscription 
act of March, 1863, the army needed to make war upon 
the rebels. The first seventy-five thousand men were 
called to arms by Lincoln, under an act of 1795 relating 
to the mustering of the militia. Then, however, " volun- 

1 The military school at West Point was founded May 16, 1802. Ap- 
plicants for admission must be from seventeen to twenty-two yean of 
age. The president appoints the pupils, one from each oongrefimonai 
district, each territory and the District of Columbia, and ten at large. 
The appointees are subject, however, to an examination for admis- 
sion and are dismissed from the academy if they do not pass the ex- 
aminations held during the course of studies. These examinations 
are controlled by a board of visitors consisting of thirteen members. 
The president appoints seven, the vice-president appoints three sen- 
ators, and the speaker of the house of representatives appoints three 
members of the house. The cadets, who must bind themselves to 
serve for eight years, are supported wholly at the expense of the 
United State ?. They receive rations and pay. At the head of iiie 
military academy there is a *' superintendent." The immediate con- 
trol of the ** battalion of cadets " is vested in a " commandant of 
cadets.'* These two military principals as well as the professors are 
appointed by the president. The corps of teachers is completed by 
army officers detailed by the secretary of war. The organization of 
the naval school is substantially the same as that of the military 
academy. The pupils are appointed, one from each congressional 
district, upon the recommendation of the representative from that 
district. The age for admission is from fourteen to eighteen years. 



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THB FEDERAL CONSTITUTION. 169 

teers'* were asked for; that is, required. This was done, 
manifestly, upon the ground of the power "to raise 
armies," and the "volunteers" were designated and 
treated as a constituent part of the TJnit^ States army. 
On some essential points, however, they were treated as 
militia. Begiments were organized according to states; 
the entire number of men called for was divided into 
quotas for the several states ; and the inferior oflBcers were 
appointed by the respective governors. It would, indeed, 
be difficult to prove that this was actually unconstitu- 
tional, but, at all events, the federal army and the militia 
were not kept so distinctly separate as they should have 
been, or at least might have been, according to the true 
intent of the constitution. 

§ 49. Militia. There is no militia of the United States. 
The constitution recognizes only a militia of the several 
states, and the authority of the federal government as to 
them is precisely defined. It is nowhere made the express 
duty of the states to have a militia. But not only does 
the constitation take the existence of a state militia for 
granted, but the states can be compelled to maintain one 
by federal legislation, for congress is authorized " to pro- 
vide for organizing, arming and disciplining the mili- 
tia." 1 

1 " Every able-bodied male citizen of the respective states, resident 
therein, who is of the age of eighteen years, and under the age of 
forty-five years, shaU be enrolled in the militia." Bev, Stat,, sec. 
1625. But, as it further says that '' aU persons who now are or may 
hereafter be exempted by the laws of the respective states shall be 
exempted from militia duty," the states are absolutely bound only to 
have some sort of a militia. Even if this is not the spirit of the law, 
its letter permits them to make the exceptions so extensive as to be- 
come the rule. Their freedom of action is expressly restricted only 
in so far that they must regard the exceptions made by the federal 
law, especiaUy the exemption of federal officials. If a state abuses 
the freedom left it by the letter of the law, it might not be able to 



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170 CONOTITUTIONAL LAW OF THE UNITED STATES. 

The training of the militia, according to the rules 
laid down by congress, and the appointment of oflScers, 
are strictly reserved to the states (art. I., sec. 8, § 16). 
The militia can be called into the service of the Union 
only for three distinct purposes: "to execute the laws 
of the Union, suppress insurrections and repel invasions " 
(Ibid.^ § 15). The militia cannot be taken out of the 
country. Moreover it can be directly called into service 
to suppress an insurrection only when the insurrection is 
against the United States. In case of domestic violence, 
directed solely against a state government, the federal 
government can interpose only on application of the state 
legislature, or of the governor if the legislature is not in 

raise an armed force for its own protection. For, when the militia 
of several states is called into the service of the United States, the 
total number of men required must be distributed among these states 
in proportion to the number of their representatives in congress. 

By an act of July 17, 1862, the call must not be for more than nine 
months. If the militia is taken into the service of the United States, 
it is subject to the same rules and articles of war as the regular army, 
but also receives '* the same pay, rations, clothing and camp equi- 
page." Its court-martials, however, are made up only of miUtia 
officers. A law of July 14, 1862, put militia in the national service 
upon the same footing as regular soldiers, so far as pension-rights 
were concerned. The first militia act (May 8, 1792) prescribed exactly 
the arms and equipments with which every officer and soldier should 
be provided. As early as 1808, congress appropriated $200,000 per 
annum for the militia, for the supply of arms, etc., — an amount which 
was to be annually divided among the states in proportion to the 
number of their representatives in congress. As a result of this ar- 
rangement the seceded states were able to begin war against the 
Union with arms furnished them by the government of the Union. 
The federal lawd contain no absolutely binding directions as to how 
the militia should be subdivided into divisions, brigades, regiments, 
etc., but the composition of the corps of officers is carefully pre- 
flcribed. Each state must have an adjutant-general, and he must 
send a report to the president at the beginning of each year. Army 
regulations as to discipline and drill are to be taken as a modeL 



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THE FEDERAL CONSTrTUTION. 171 

session. In this instance, however, it is bound to lend its 
aid (art. IV., sec. 4).* The constitution does not say in so 
many words whose duty it is to call out the militia for any 
of the purposes mentioned. The wording of the partic- 
ular clause — "^'to provide for calling forth" — shows, how- 
ever, that congress need not act directly in every case, 
but may pass general laws providing under what circum- 
stances and in what way a call shall be made. This it 
has done, and has transferred the power, with all the im- 
plied powers and duties, to the president. When the 
militia is called into the service of the United States, the 
provision applies to it, which authorizes congress " to 
make rules for the government and regulation of the land 
and naval forces " (art. I., sec. 8, § 14). The wording of 
this paragraph, which forms the basis of the whole " mil- 
itary law," is not sufficiently clear to permit the line be- 
tween the authority of congress and that of the president 
as commander-in-chief to be always drawn with certainty.* 
§ 50. QuARTEBiNo SoiJDiEES. Traditious of English his- 
tory caused the passage of the third amendment. This 
provides that " no soldier shall in time of peace be quar- 
tered in any house without the consent of the owner, nor 
in time of war, but in a manner to be prescribed by law." 

1 This proyision has this weighty result, that, when two legislatures 
or two governors are opposed to one another in the same state, the 
president must decide which government is the legal one. Whether 
there really is domestic violence is a question of fact, as to which, 
according to law, the president has the exclusive right of decision. 
If his decision is held to bo erroneous by congress, the latter can ad- 
minister whatever remedy seems fit, but there can be no appeal to 
the courts from the judgment of the president. Luther V8, Borden, 
Howard, YII., 48-45; Martin V8, Mott, Wheaton, XIL, 29^1. 

'See Pomeroy, p. 297, for a case of conflict resulting from thia. 



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172 CONSTITUTIONAL LAW OF THB UNITED STATES. 



THE SEAT OF GOVERNMENT AND THE SEPARATE PROP- 
ERTY OF THE NATION. 

§ 51. District of Columbia. When, after the termi- 
. nation of the war of independence, the wretched effects 
of a weak government became daily more and more mani- 
fest, tlie evils due to the fact that congress had to meet 
within the limits of a state's jurisdiction were especially 
felt. This made congress dependent to a certain degree 
Hpon the state government, a dependence which was 
always improper, and under critical conditions might 
have become fatal. These evils led the authors of the 
constitution to think of a means of preventing them for 
the future. And they concluded that they had discov- 
ered it in the provision authorizing congress to acquire 
by cession from any of the states a district of not more 
than ten miles square as the seat of government over 
which it could " exercise exclusive legislation in all cases 
whatsoever " (art. L, sec. 8, § 17). The territory called 
the District of Columbia was acquired from Virginia and 
Maryland. The part ceded by Virginia was afterwards 
ceded back to her. The history of the slavery question 
teaches on every page the eminent significance of the 
fact that the capital was built within the domain of 
slavery. Against the clear wording of the constitution, 
the south asserted that congress could not, without the 
consent of Maryland (and Virginia), abolish slavery in 
the District. Until civil war had come, the representa- 
tives of the north acknowledged the " moral " obligation 
of letting it continue. The seat of government was 
^withdrawn from the influence of a state government, but 
instead it was brought under the infinitely more potent 
influence of the slavocracy. Apart from the slavery 
question, this paragraph has given rise to no far-reaching 



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THE FEDERAL OONStTTUTION. 173 

controversies. The principles laid down by the supreme 
court, that the exclusive legislative power involves exclu- 
sive jurisdiction, and that congress is not the local legis- 
lature of the District, but possesses, as the national 
legislature, exclusive legislative power over it, have never 
been seriously assailed.^ The power of giving the city 
of Washington its own municipal government has there- 
fore always been regarded as self-evident. On the con- 
trary, the constitutionality of organizing the District into 
a territory like the ordinary territories has been disputed, 
because a partial delegation of the legislative power is 
inadmissible, on account of the expressly stated exclusive- 
ness of this power. It is, however, generally admitted 
that '^ exclusive " does not mean the same as ^^ unlimited." 
Congress cannot grant the inhabitants of the District 
any rights which, according to the general political nat- 
ure of the Union, belong only to the population of the 
states — such, for instance, as representation in congress, 
participation in the presidential election, etc. And just 
as little can congress rule the District without regard to 
the provisions of the so-called "bill of rights." But 
what congress cannot do in regard to the District in 
piiatters not involving the rights of the states as such, 
that it also cannot do in reference to anybody or any- 
thing.' 

1 Cohens vs, Virginia, Wheaton, VI., 424. 

* Congress has tried all sorts of experiments as to the local govem- 
ment of the District, some of them with very imfortunate results. 
At present there are three commissioners at the head of the admin- 
istration of the District. The inhabitants cannot well grieve over the 
loss of their short-lived enjoyment of a limited autonomy, for while 
their rights have again become more limited (necessarily so under the 
present system) their interests are better cared for. They must bear 
the same burdens as the rest of the people, have the same taxes to 
pay and are bound to serve in the militia. But in spite of their full 



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174 CONSTITUTIONAL LAW OF THE UNITED STATES. 

§ 52. National Pkopkrtt. In the same paragraph 
equally exclusive authority is given congress " over all 
places purchased, by the consent of the legislature of the 
state in which the same shall be, for the erection of forts, 
magazines, arsenals, dock-yards, and other needful build- 
ings." Real estate within a state may also be acquired by 
the nation without the consent of the state legislature, but 
it is only when that consent is given that this provision 
applies. The inhabitants of such places are legally no 
longer inhabitants of the state, that is, they do not pos- 
sess the civil and political rights which would belong to 
them as citizens of the state. In spite of this provision, 
the seceded states demanded the evacuation and surren- 
der of the forts and arsenals as their right, on the plea 
that the "places" had not ceased to be a portion of the 
territory of the state on account of congress's acquiring 
exclusive legislative power and jurisdiction over them, 
and that consequently they must ipso facto revert to the 
states if the latter by virtue of their sovereignty cut loose 
from the Union. If the premises, that is, state sovereignty 
and the resulting right of secession, are admitted, then 
the correctness of the conclusion must be granted, and 
the Union would have had only a right of reasonable in- 
demnification. But what legal claims could the seceded 

citizenship political rights are withheld from them solely because they 
have their domicile at the seat of govermnent. This is an anomaly 
that has never been justified theoretically, and its necessity — not to 
say its expediency — has become at least doubtful since the power of 
the federal government has become so firmly established and so far 
beyond the power of each separate state. This anomaly, moreover, 
win always remain a thorn in the flesh of the American disciples of 
the doctrine of natural political rights. The creation of the District 
of Columbia is one of those steps which it is scarcely possible to re- 
trace, even if the circumstances, which at one time made them seem 
wise, have given room to a completely changed state of things. 



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TUE FBDEBAL CONSTITUTION. 175 

States, upon these premises, make in regard to that fed- 
eral property, — the territories, — which had most directly 
led to the development of the clash of interests between 
the north and south into an "irrepressible conflict" which 
had to lead to a rupture? The abstract logic of this 
method of interpreting constitutional law would have 
obliged the south to demand the partition of the territo- 
rial domain among the several states. This would have 
been the final practical result of the doctrine, and it puts 
its absurdity in the most glaring light. 

§ 53. The TERErroRiES. The slavery question, which 
every year became more and more the central point of 
the whole inner history of the United States, culminated 
in the struggle over the territories; that is, in the ques- 
tion what rights the slave-holder had, or ought to have, in 
them. While the southern states had originally preferred 
to rely upon a claim of equity, and had triumphantly 
celebrated the fact that their " peculiar institution " could 
be unconditionally and forever excluded only from the 
territorial domain north of 36° 30', the rapid develop- 
ment of the north forced them to constantly increase their 
claims, until they finally laid down the principle that slav- 
ery could not be prohibited in a territory either by congress 
or by the people of the territory through its legislature, 
but that, independent of the constitution, the slave-holder 
could go with his slaves into any territory, and must be pro- 
tected in his ownership until the territory became a sov- 
ereign state and thus acquired the right to determine for 
itself whether or no slavery should exist within it. The 
so-called Douglas democrats also denied the power of 
congress to legislate as to slavery in the territories, but 
declared that the population of each territory was author- 
ized to permit or prohibit slavery. The republicans, on 
the contrary, advocated fully and completely the doo- 



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176 OONSTTTUTIONAL LAW OF THE UNITED STATES. 

trine, at first generally acknowledged, of the exclusive 
f and unlimited legislative authority of congress over the 
\ territories. The assertions of the radical southerners 
and of the Douglas democrats found not the slightest 
positive support in the constitution. Neither of these 
two parties asked what the law was according to the con- 
stitution, but constructed by general reasoning from pre- 
tended " principles " outside of the constitution the " right " 
which they claimed existed. This was made possible be- 
cause the only express constitutional provision that could 
be invoked as bearing on this question certainly gave no 
sufficiently solid and broad foundation for the correct 
doctrine. The latter, therefore, had to be to a great ex- 
tent based upon deductions from other clauses of the 
constitution, or wholly upon general principles. The con- 
stitution says nothing whatever about " territories." And, 
moreover, the word "territory " is used but once, and that 
in the following provision: "The congress shall have 
power to dispose of, and make all needful rules and regu- 
lations respecting, the territory or other property belong- 
ing to the United States " (art. IV., sec. 3, § 2). "Terri- 
tory " is thus named in connection with " other property." 
It was argued from this that the word was used only in 
reference to land as a salable object, and that the " rules 
and regulations " related only to the methods of turning 
it into cash. 

Even statesmen and jurists who were by no means 
" strict constructionists " have recognized that it is at least 
very doubtful whether there could be deduced from this 
paragraph a general legislative power of congress over the 
territories, limited only by the constitution. They based the 
right upon the power of acquiring territory. This power 
itself was originally doubted ; but the opinion of the su- 
preme court that it is implied in the grant of power to de- 



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THB FEDERAX CX)N8TITnTIOIir. 177 

dare war and make treaties received general assent. If, 
however, the right of legislation can be inferred only from 
the right of acquisition, does it not exist, then, only as to 
the domain acquired by war or treaty under the constitu- 
tion? But one of the first laws of congress related to the 
territorial domain acquired before the existence of the 
constitution. This law provided that the " ordinance of 
1787 " as to the territory northwest of the Ohio river, 
which became inoperative upon the adoption of the con- 
stitution, should remain in force.^ The constitutionality 
of this law was questioned by no one, although it was 
admitted that the congress of the confederation had no 
authority to enact the ordinance, and that its usurpation 
could be pardoned only on the ground of an imperious 
political necessity. Moreover, as it had cost a long and 
diflBcult struggle to persuade the states to transfer to the 
Union the unsettled " backwoods " districts they cfeiimed 
under their colonial patents, the great importance of the 
question must have been very plain to the authors of the 
constitution. These facts lead to one of two conclusions, 
either that the right of legislation seemed to the authors 
of the constitution a self-evident consequence of ownership, 
or else that the provision cited does not refer simply to 
the value of " territory " as part of the national wealth.^ 
. The preference must be given to the latter assumption. 
For, in the first place, the right of sale is a direct legal 

1 It has, however, been disputed whether or no the adoption of the 
oonstitation affected the validity of the ordinance. Cooley, Prin- 
ciples, 160. 

'^Georgia and North Carolina ceded their "backwoods" country 
only after the adoption of the constitution. It is to them that the final 
clause <rf the paragraph quoted refers : * * And nothing in this constitu- 
tion shall be so construed as to prejudice any claims of the United 
States or of any particular state." 
Id 



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178 OOKSnTUTIONAL LAW OF THE UNITED STATES. 

consequence of the fact of ownership, and if an express 
declaration of the smaller power wei-e deemed necessary, 
the express declaration of the greater could not be 
regarded as superfluous. It would have been quite pos- 
sible, however inexpedient, to transfer to the president 
the administration of the territorial domain regarded sim- 
ply as property, if the regulation of territorial relations 
by law was to be renounced. But the general right of 
legislation for this most important part of the national 
domain could belong only to the national legislature, 
if it existed at all. That it must exist was never dis- 
puted by the most extreme advocates of states'-rights. 
It was constantly exercised, with their co-operation, in 
the most comprehensive manner, although they utterly 
denied its existence in regard to slavery as a question sui 
generis. 

In spite of the greatest differences of opinion upon the 
constitutional basis of the powers in question, legislation 
as to the territories has thus always had, by common 
consent, two entirely different sides. On the one side 
the laws refer to the territorial domain as ayer puhlicusy 
and on the other to the territories as such, i. e., as political 
structures entirely peculiar to the United States, pointedly 
called embryo states, — states in chrj^salis form. As to 
the former, we need only emphasize here that thoughts of 
immediate monetary returns were thrust more and more 
into the background as the country developed and 
greater stress was laid upon the encouragement of settle- 
ment. Sales at low prices of course constantly continued, 
but the free grants increased extraordinarily. Among 
the more important of the latter were rewards to men 
who had shed their blood for the country, gifts for school 
purposes and for the promotion of railroad building, and 



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THE FEDBBAL CONSTITUTION. 179 

above all things grants of homesteads, conditioned upon 
cultivation of the land a certain number of years.* If 
congress had limited itself to selling the land cheap and 
to giving it away, the process of settlement, however, 
would have gone on very slowly. In order to induce a 

iThe general land office was created April 25, 181d» to adminieter 
the national treasure of the public lands. Its head is a commissioner 
appointed by the president with the consent of the senate. It was 
originally part of the treasury department, but was afterwards at- 
tached to the department of the interior. How great the business 
extent of this bureau is may be inferred from the fact that it is the 
head centre of more than a hundred land offices. But it has already 
touched its high-water mark. In the near future there wiU be no 
ager publicna anywhere in the United States. 

The survey of the public lands is made in accordance with a most 
comprehensive geometric plan. Oeneral meridian lines are first es- 
tablished. Then, between them, and at distances of six miles apart, 
parallel lines are drawn north and south, and east and west. The 
squares thus formed are called townships and are numbered contin- 
uously in both directions (from north to south Arabic and from east 
to west Roman numerals). Each township is divided in the same 
way into thirty-six sections, each one mile square, and every section 
into sixteen quarters of quarter-sections of forty acres each. 

Acquisition by Purchase. The more the knowledge grew how 
much the settlement of the " backwoods" was in the interest of the 
whole i)eople, the more reasonable and moderate were made the 
prices of the public lands. The more also was attention directed to 
facilitating the settler's getting an indefeasible title to the land he had 
b^gun to cultivate. With this aim in view, very appropriate provisions 
were devised as to the right of pre-emption. An act of September 
4, 1841, made subject to pre-emption all public lands with the ex- 
ception of (1) the reservations made by treaty, law or proclamation 
of the president; (2) land within the limits of already incorporated 
or prospective cities and towns ; (3) land already in use for purposes of 
trade or business; (4) lands on which salt-pits or mines were known 
to exist. Citizens of the United States of full age, and immigrants 
who have legally declared their intention of becoming citizens, can 
acquire the right of pre-emption at the lowest legal price, by begin- 
ning to cultivate the land they wish, provided that they do not 
already own in any state or territory three hundred and twenty acres. 



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180 CONSTITUTIONAL LAW OF THE UNITED STATES. 

larger namber of people of culture to pull down their 
domestic altars and bear them into the wilderness, before 
all things they had to be assured that the principles of 
social and political order had already found a place 
there, and that the tribunal of law had been erected. In 

and have not given up their property in that state or territory in order 
to take poBsession of public land. The president determines what 
public lands not claimed under pre-emption are to be offered at pub- 
lic sale. The necessary proclamations must be published from three 
to six months before the sale. As a rule the lands are offered for 
fourteen days, and the upset price is $1.25 per acre. Land offered 
at public sale and not sold may afterwards be sold privately. The 
alternate sections reserved in making land grants to railroads are 
doubled in price. There are special provisions as to mineral lands. 
Originally only the right of mining, and not the land itself, could be 
acquired. An act of May 10, 1873, permits the purchase, but re- 
stricts the right to citizens and to those immigrants who have made 
the often-mentioned declaration of intent to become citizens. This 
act authorizes the miners of each mining district to make rules " gov- 
erning the location, manner of recording, amount of work neoesBary 
to hold possession of a mining claim,*' etc., under the self-evident re- 
striction that these rules shall not conflict with the laws of tbe 
United States or of the state or territory in which the district is lo- 
cated. To receive a * ' patent " for a piece of mineral land, proof must 
be furnished that at least $500 has been expended in preparatory work 
upon the particular piece of ground. This provision assumes, what 
is true in fact, that the search for minerals in the public lands is en- 
tirely free. If within sixty days no counter-claim is made, the daini 
wiU be granted upon the payment of $5 per acre. A patent for a 
mining claim is issued only if the vein or lode has been found on the 
piece of ground to be patented. The claim cannot extend over one 
thousand five hundred feet along the vein or lode, and not more than 
three hundred nor less than twenty-five feet on either side of its cen- 
tre line, to be measured on the surface. For placer-daims, that is, 
when the mineral to be excavated is not imbedded in rocks, a patent 
depends upon analogous provisions ; but according to a law of July 
9, 1870, no person or association can obtain a plaoer-daim of more 
than a hundred and sixty acres. An individual can buy one hundred 
and sixty acres of coal lands and an association three hundred and 
twenty acres, at a minimum price of |10 per acre if the land is more 



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THB FEDEBAL CONSTITUTION. 181 

the Bature of things, this could happen in this instance 
only by virtue of federal law. And so the right or duty 
of congress to " make all needful rules and regulations " 
to make the territories worth as much as possible in 
money to the Union implied as its direct and necessary 

than fifteen mUes from a completed railroad, and at a minimum price 
of $20 per acre if it is witliin this limit. If an association of not less 
tlian four i>ersons has already spent $5,000 in opening a ooUiery, it 
has a rifcht to buy six hundred and forty acres (act of March 8, 1878). 

Acquisition by Qift, *' Mineral land " is excepted from all grants 
(resolution of January 80, 1865, and act of June 21, 1866). The land- 
grants made at various times to soldiers were assignable, and there- 
fore, to a large extent, they were profitable only to speculators. 
The famous homestead law of May 20, 1862, absolutely forbids 
any assignment as long as the homestead has not become the sole 
property of the settler. Under this law citizens of the United 
States of full age (including women), and immigrants who have 
declared their intention to become citizens in the legal manner, 
can enter as homesteads either one hundred and sixty acres of public 
lands held at $1.25 an acre, or eighty acres of such land held at $2.60 
per acre, upon paying a fee of |10 or $5 respectively. An affidavit 
must be made and filed setting forth that the entry is made for the 
purpose of actual settlement and cultivation, and neither directly nor 
indirectly for the benefit of any other person. When the settler has 
lived five years upon his land and cultivated it, it becomes his free 
property ; but all right to it will be forfeited if he removes to an- 
other place or actually abandons the land entered for more than six 
months. For the benefit of minor children, both of whose parents 
die before perfecting the homestead title, the homestead may be sold 
within two years after the death of the surviving parent. Oreditors 
cannot levy on a homestead if their claims are older than the patent. 
Pursuant to this law there were entered in the general land offloe 
from July 1, 1869, to June 80, 1884, about seventy-one million acres. 
Under the act hereafter mentioned, to encourage the planting of 
trees, twenty million acres more were entered. 

Taum and City Sites. By act of March 8, 1868, the president is 
authorized to reserve town sites at harbors, at the junction of 
rivers, important portages, or any natural or prospective centre of 
population. These reservations are divided into building lots and 
offered at public sale at prices fixed by disinterested persons. If not 



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182 CONSTITUTIONAL LAW OF THB UNITED STATES, 

result the general power of congreps to legislate. Accord- 
ingly, congress has, as has been said, always and in fact, 
from the very beginning, made smooth the way for the 
pushing stream of settlers to the far west by organizing 
large sections of the territorial domain by law into terri- 
tories bearing distinct names and possessing political sys- 

sold at public auction tliey may be sold privately, but not for lees 
than the estimated price. Private persons who have laid out a town 
upon the public lands or propose to lay one out must, pursuant to an 
act of July 1, 1864, record and submit an exact survey, covering at 
most six hundred and forty acres. The lots, which must not exceed 
four thousand two hundred square feet, are then offered at public 
auction at a minimum price of $10 each. At the subsequent private 
sales the secretary of the interior may raise or lower the price, as the 
development of the place seems to demand ; but any change in the 
minimum price must be made known at least three months in ad- 
• vance. During these three months an actual settler on a lot can buy 
that and also any other one lot which he has substantially improved 
at the former minimum price. Pursuant to the act of March 2, 1807, 
the city authorities of an incorporated city (and in case of non-incor- 
poration, then the judge of the county court) may enter in trust, for 
the benefit of the occupants of town lots, the whole area at the min- 
imum price. The trust is then executed according to state or terri- 
torial legislation. The same law permits the area of the town to be 
enlarged as the population increases, and fixes two thousand five 
hundred and sixty acres as the maximum for five thousand inhab- 
itants. 

Certain parts of the public domain, distinguished for natural 
beauty or natural wonders, such as the Yellowstone Park, are re- 
served by law from sale, gift or other alienation. 

W. W. Lester, Land Laxos, Regulations and Decisions of the U, fl^., 
d vols.. Phila., 1860-70; H. N. Copp, Public Land Laws, Washington. 
1875 ; J. B. Lewis, Leading Cases on Public Land LatDS, Wash., 1879 ; 
D. H. Talbot, Land Laws of the U, 5., Sioux City, 1879; G. A. 
Blanchard and E. P. Weeks, Leading Cases on Mines, Minerals and 
Mining Water Rights, San Francisco, 1877 ; W. A. Skidmore, Mining 
Statutes of the U, S. and Decisions, San Francisco, 1878 ; M. B. Car- 
penter, Mining Code of the U. S. and Colorado, 8d ed., Denver, 1880; 
H. N. Copp, 17. S. Mineral Lands, Washington, 1881 ; D. S. Sickles, 
U. 8, Mining Laws and Decisions, San Francisco, 1881. 



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THE FEDERAL 00N8TITUTI0M. 188 

tems of their own under the control of the federal 
government. They are not limbs, but constituent parts 
of the Union. Therefore the doctrine that the constitution 
becomes valid as to the territories only by legislation — 
although Webster defended it — is utterly inadmissible. 
The constitution is not only the fundamental law Of the 
united states, but it is the constitution of the United 
States; and this name comprehends within itself the 
whole domain of the Union. If the territories were not 
subject to the constitution, congress could pass no laws 
about them, for it possesses no power outside of the con- 
stitution. Webster's principle is true only in this: that 
a large part of the constitution does not apply to the 
territories. They have no rights of their own under the 
constitution, and cannot be granted any such by congress. 
The inhabitants of the territories, who are citizens of the 
United States by birth or naturalization, have all the 
rights guarantied or granted by the constitution or 
the laws to citizens of the United States as such. But 
they have not and cannot have the rights which belong 
to citizens of the states by virtue of the constitutional 
rights of the states. They can no more have representa- 
tion in congress or a share in presidential elections than 
the District of Columbia can. In order to present their 
wishes, grievances and views directly to congress, the 
right has been given them by law to elect a " delegate " 
from each territory to the house of representatives. 
Delegates, like representatives, can discuss every ques- 
tion, but even if a territory were ten times as populous 
as one or another state, the right to vote in congress 
could be given its delegate only by a constitutional 
amendment. And such an amendment would overthrow 
a fundamental principle of the constitution. 
On the other hand, congress can at any moment abol- 



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184 CX)N8TITUnONAL LAW OF THB TTNITBD STATES. 

ish the institution of territorial delegates and can snbject 
the general organization of the territories to any change 
it sees fit. The form of organization has in fact varied. V 
Different plans have been tried, not only as to minor de- 
tails, but in matters of such an essential character that it 
is not incorrect to speak of territories of different grades. 
In the simplest form, the governor and the judges — both 
appointed by the president with the consent of the senate 
for territories of every grade — constitute the law-making 
body, while in territories of the highest grade the legis- 
lature is elected by the people and consists of two houses. 
Some of the territories have had both forms of govern- 
ment, besides undergoing a transition from one to the 
other. Now, there are only territories of the highest 
grade. Yet there is a substantial difference among them, 
because some of them have to submit their laws to the 
approval of congress, while in the case of others * this is 
not demanded. But even if congress has freely used its 
power of organizing the territories in each given case ac- 
cording to the peculiar controlling circumstances of the 
case, yet the same thought lies at the basis of every dif- 
ferent form of organization. And this is made necessary 
by the tenor of the part of the constitution which precedes 
that which treats of the territories. It must be read and 
interpreted in connection with the latter. It relates to 
the admission of new states.' 

1 Dakota, Idaho, Montana and Wyoming. 

^The territorial organizations have become, as stated In the test, 
more and more alike. The foUowing provisions hold good for all of 
the territories : The executive power is in the hands of a governor, 
who is appointed by the president with the consent of the senate for 
a term of four years. In the same way and for the same time are 
appointed the secretary, the judges of the supreme court, the district 
attorney and the marshal. The term of office may also be ended hy 
removal, before the expiration of the four years. The governor ia 



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TUB FEDERAL CONSTITUTIOK. 185 

§ 64. The Admission of New States. " New states 
may be admitted by the congress into this Union." It is 
evident that the authors of the constitution, in adopting 
this provision, had in mind, in the first place, states which 
were to develop in and out of the then territorial domain 
of the Union, because the constitution goes on to say : 
" But no new state shall be formed or erected within the 
jurisdiction of any other state, nor any state be formed 

oommander-in-chief of the militia. He poBseeses the right of pardon 
in cases of Tioladon of territorial laws, and in cases of violation of 
federal laws he has the right of postponing the execution of the judg- 
ment until the president's decision can be got. He appoints certain 
officials. He has the same qualified "veto "-power over territo- 
rial enactments as the president has over congressional legislation. 
Other important powers of the governor need not be cited here» be- 
cause they simply caU into life the organs of self-government and 
themselves expire with the meeting of the first legislature. The sec- 
retary discharges the functions of the governor, in case of the latter's 
absence, resignation or removal, until the governor can again attend 
to his office or another governor is appointed. The secretary keeps 
the l^slative as weU as the executive records. He sends the laws 
to congress and to the president, and to the latter, besides, the jour- 
nals of the legislature, the pardons and the official correspondence 
of the governor. The legislative* power— in striking contrast with 
the corresponding provisions of the federal constitution, although the 
governor has in this respect only the same powers as the president — 
is vested in the governor and a legislative assembly. The latter con- 
sists of a oouncU and a house of representatives. Members of both 
houses are elected for two years. The legislature meets each second 
year. The sessions cannot la^t more than forty days, and the print- 
ing expenses of a session cannot exceed |4,000. A candidate for the 
legislature must reside in the particular district and must have the 
franchise. The conditions of the right of suffrage are fixed by 
the legislature ; but it can be granted only to citizens of full age and 
to such immigrants as have legally declared their intention to become 
citizens. As the constitution and aU federal laws, so far they are not 
*' locally inapplicable," are valid iu the territories, the political equal- 
ity of the colored people is protected in the territories as far as it is 
in the states under the constitution and federal laws. The authcx-ity 




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186 coHsnTonoNAL ulw of the united states. 

bj tho janction of two or more states, or parts of states, 
without the consent of the legislatures of the states 
ooncomedy as well as of the congress " (art. lY., sec. 3, 
§ 1). ^ It is certain that this is what the fathers had in 
mind, because in the ordinance of 1787, already men- 
tioned, the formation of "not more than " five new states 
out of part of this territorial domain and their admission 
into the Union had been taken into view. 

Accordingly, congress, in organizing territories, has 
always aimed, not to act from the stand-point of colonial 
administration, but, on the contrary, to ascertain the life- 
forms adapted to an embryonic state. This explains, too, 
the different "grades." The more nearly a territory 
approaches the end of its territorial existence, — its trans- 
formation into a state, — that is, the more the number of its 

of the legislature extends "to all legitimate objects of legislation," 
but oongrees reserves "the primal disposal of the soil." Federal 
property cannot be taxed at aU, and the property of non-residentB 
cannot be taxed higher than that of residents. The legislature can- 
not grant private franchises and special privileges ; that is, corporate 
rights can be granted only by general laws. Justices of the peace 
and general officers of the militia are chosen in the manner prescribed 
by the legislature. Whether and how the township, district and 
county officers are to be appointed or elected is left to the legislature. 
Members of the legislature are paid $6 a day, besides mileage. All 
payments for the support of the territorial government from Uie na- 
tional treasury are made only upon vouchers signed by the secretary 
of the treasury. The supreme court consists of a chief justice and 
two associate justices. Two judges must be present to decide a 
case. The territory is divided into three judicial districts. Each of the 
judges of the supreme court is judge of one of the districts. He must 
live in his district. Cases are heard in the supreme court only upon 
appeal. Probate courts pass upon matters of inheritance. Justices 
of the peace have no jurisdiction in litigation over real estate. All 
other regulations as to the different courts are left to the legislature. 
1 Congress nevertheless held itself authorized, after the secession of 
Virginia, to empower the loyal part of the state to organize itself as 
an independent state, under the name of West Virginia. 



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THE FEDERAL CONSTITTJTIOK, 187 

people, the density of its population,^ and its wfealth,' cor- 
respond to the claims which a state must meet, the greater 
is the freedom of action granted it. The times and methods 
of admitting new states have varied greatly. Congress 
is under no constitutional obligation either in the one or 
the other respect, since it may^ but never raust^ admit new 
states. As to the time of admission, the general rule has 
been that a territory must have as many inhabitants as 
are necessary to elect a member of the house of repre- 
sentatives, but this rule has not been always strictly fol- 
lowed.' As to the manner of admission, the general rule 
has been that congress, by an " enabling act," has per- 
mitted the people of a territory to frame and adopt a 
state constitution in a constitutional convention. It is true 
that several territories went to work without this author- 
ization of congress, and were nevertheless admitted by it. 
Other irregularities, too, at least extra-legal if not illegal, 
have occurred, and, although objected to, have not been 
regarded as sufficient reason for refusing admission.^ A 

1 The very large territories have been repeatedly divided by con- 
gress, partly in order not to let the new states be too unequal in size, 
and partly in order not to hamper the more densely settled portions 
with those slower of development. The boundaries of a state thus by 
no means always coincide with the original limits of the territory out 
of which it is formed. Indeed, parts of different territories may, 
under ceii^in circumstances, be made into one state. 

2 The expenses of territorial government are borne by the Union, 
while the state governments are, of course, supported by their re- 
spective peoples. 

> Not only have states been admitted before the population had 
reached the required number, but territories with a population far in 
excess of this number have been refused admission. The latter was 
the case with Utah and New Mexico. Mormonism with its polygamy 
kept out Utah, ^d the predominance of Spaniards and Indians in the 
population kept out New Mexico. 

< AU the instances in point will be found in Jameson, ThA CorutUur 
tional Convention, 



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188 OONSTITUnONAL LAW OF THE UNITED STATES. 

popular vote on the work of the convention has not been 
deemed absolutely necessary. The new constitution, 
however, is always subject to the approval of congress, 
which has virtually already, by the enabling act, ordered 
, the admission of the state in case the conditions set forth 
in that act are fulfilled. The question of the limits of 
the right to impose conditions has repeatedly given rise 
to violent parliamentary contests. The equality of the 
states is a fundamental principle of the constitntion. 
Hence it has been argued that conditions which limited 
the right of self-government, in comparison with the posi- 
tion in constitutional law of the other states, were inad- 
missible, and that they could not be enforced; because, 
as soon as the admission has taken place, the state has 
become complete master of its freedom of action. Con- 
gress, however, in a considerable number of instances, has 
imposed such conditions, and has also demanded the 
assurance that the state constitution should never be 
changed in this or that respect.^ But, as congress never 
must admit a state, the imposition of conditions of any 
sort cannot be hindered, if they be not directly unconsti- 
tutional. And if a state promises not to make use of a 
certain right guarantied it by the constitution, this is not 
unconstitutional; it is simply not obligatory, from the 
stand-point of constitutional law. The imposition and 
adoption of such conditions are to be regarded as a polit- 
ical pact, to the maintenance of which the state is bound 
by truth and faith, but not by constitutional law. It 
must be admitted that such compacts do not respond 

^This latter occurred particularly in regard to the seceded stateB 
before they were again aUowed representation in oongrees. The argu- 
ment against the constitutional authority of congress applies to these 
cases in the same degree as to new states about to be admitted. For 
a coUection of the facts in question, see Cooley, Prtnctpfos, 174-177. 



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THE FEDERAL CONSTITUnOIT. 189 

to the spirit of the constitution. Congress would hardly 
have required them, and, if it had done so, would hardly 
have commanded public approval, if the slavery question, 
and later on the civil war and the abolition of slavery, 
had not brought about a condition of affairs in w^hich 
legal opinions were, and had to be, pressed into the back- 
ground by political and moral considerations. Conditions 
of another kind, as to boundaries, etc., of course cannot 
be objected to as in any way opposed to the constitutional 
law. If congress has not provided that the state shall be 
admitted upon the fulfillment of the conditions imposed 
by it, this happens as a matter of law by a proclamation 
of the president. According to the theory of American 
politicians and publicists, the transformation of the terri- 
tory into a state has already taken place before its admis- 
sionj for, they allege, a state must exist in order to have 
a state admitted. They have never, however, answered, to 
my knowledge, the question as to what relation prevails if 
congress, after the passage of an enabling act, and the 
consequent formation and adoption of a constitution by a 
constitutional convention, should nevertheless, for some 
reason, exercise its undoubted right to refuse admission 
to the state. In my opinion, the failure to regard the 
admission of a state as the completion of its transforma- 
tion from a territory involves some serious results. The 
territorial domain of the United States can be trans- 
formed, as a matter of constitutional law, only into states 
of the Union, and a state can therefore come into exist- 
ence only when it is one of the states of the United States ; 
that is, a co-ordinate and recognized constituent member 
of the Union. The change of a territory into a state has 
no legal effect upon the status of the pubhc lands. Except 
so far as they are granted expressly to the state by con- 
gress for definite purposes (schools), they do not pass into 



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190 CONSTITUTIONAL LAW OF THE UNITKD STATES. 

its possession, but remain property of the Union, and are 
subject to the same legal provisions as before. 

The admitted states have all been formed out of parts 
of the states of the original Union or from the territorial 
domains of the Union. Texas is the only exception. It 
was an independent republic. Its incorporation into the 
Union met with vigorous opposition, on not only political 
but constitutional grounds. The way in which this was 
done — by a "joint resolution '' of both houses of con- 
gress after a treaty of annexation had failed to receive 
the necessary majority in the senate — was a good cause 
for serious objection. Nevertheless the assertion that an 
independent nation cannot be directly transformed into 
a state of the Union seems unfounded, for the power to 
admit new states is granted wholly without conditions. 

THE P0V7ERS OF THE PRESIDENT. 

§55. Powers and Duties of the President. It has 
been said that the president of the United States is 
mightier than the rulers of modern England. This is un- 
doubtedly true.* To correctly estimate the powers of 
the president, one fact must be taken into consideration, 
which is often wholly overlooked or insufficiently appre- 
ciated. He has of course certain very important powers 
which he exercises in full independence of the other fac- 
tors of government. But this full independence in the 
most essential matters is restricted to taking the initiar 
tive. His acts require the sanction of the senate in order 

1 Of those powers of the president abready discussed in another con- 
nection—the right to require written opinions from the heads of 
departments, the so-called veto, his powers as to convening and ad- 
journing congress and hia right and duty to report to congress upon 
the state of the Union and to make recommendations — no further 
mention will be made here. 



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THE FEDERAL CONSTITUTION. 191 

to be perfected. In anDther set of his powers he is like- 
wise independent of congress to this extent, that it cannot 
of itself either diminish or increase them. But the oppor- 
tunity for the exercise of these powers is given the presi- 
dent only by law and the way in which he shall exercise 
them is defined by law. To a great extent congress can 
determine how widely or how narrowly it will draw the 
limits of his independence. It can grant him a fullness 
of power that under certain circumstances is little inferior 
to that of a Eoman dictator. It can also bring him so 
sharply under its own control and bind his hands so 
closely, that his constitutional position as a co-ordinate 
factor of the government is seriously endangered and 
the interests of the country are gravely injured by the 
weakness of the executive power. If congress wishes to 
abuse its powers, it can easily bring down the president — 
so far as a number of his most important powers of an 
eminently political character are concerned — to the 
level of the third duty imposed upon him by the consti- 
tution, — that of acting merely as the executive organ of 
the legislative will of congress.^ 

1 It has been boldly asserted that parliamentary goTemment as it 
is known in Europe was entirely excluded in the United States by the 
constitutional organization of the federal govemment. On the con- 
trary the govemment vests directly in congress to such an extent 
that in a book just published, which deals incisively with this ques- 
tion, the author says: '* I know not how better to describe our gov- 
emment in a single phrase than by calling it a government by the 
chairmen of the standing committees of congress.** (W. Wilson, 
Congressional Government: a Study in American Politics, Boston, 
1885.) This exaggerates, as all statements must exaggerate which 
seek in one pointed phrase to define great and complicated relations. 
Not only, however, is there much truth in the assertion, but this 
truth is so clear, and its pre-eminent significance is so plain, that for 
some years public attention has been more and more strongly drawn 
to it. The framers of the constitution did not expect this develop- 



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192 CONSTITUTIONAL LAW OF TOE UNITED STATES. 

§ 56. MiLiTABT Power. The president is commander- 
in-chief of the army and navy, and also of the militia, 
when the latter is called into the actual service of the 
United States (art. 11., sec. 2, § 1). This is all the consti- 
tution has to say as to the military power of the presi- 
dent. This clause in its blunt simplicity is the best 
illustration of the maxim of American constitutional law 
already mentioned, that the constitution enumerates bat 
does not define the powers of the federal government. 
Congress can appoint no other commander-in-chief, and 
can withdraw from the president not the slightest part 
of the powers appertaining to the commander-in chief. 
This is without doubt, as the constitution confers that 
office upon him with a categorical ^^ shall be." But what 
are the powers appertaining to the office propria jurel 
The constitution cannot possibly mean that the expres- 
sion " commander-in-chief " should first be given a con- 
crete meaning by legislation, for the thought underlying 

ment It undonbtedly runs directly counter to their intentions. 
They created a separate executive because their experience led them 
to reject congressional government on principle. They had recog- 
nized the fact that the many-headed legislative power not only could 
not govern well, but in the long run could not govern at all ; and so 
far as the facts correspond with Wilson's assertion, they have demon- 
strated this truth anew. He calls his study " Congressional Oovemr 
ment;" yet he does not say that congress governs, but that its 
standing committees or rather their chairmen do; and that, too, not 
in the sense that they are together actually the government, but that 
each of them is a particular and isolated part of the government. So 
far as bis assertion is weU founded, this '* congressional government" 
is therefore in a great measure a systematic laxity of government, 
because the organic coherence, the uniform guiding thought and 
wiU, and the legal binding of the parts into a comprehensive whole 
are wanting. Yet, however, matters of constitutional law and of 
tact may be considered from a political stand-point, this is certain, 
that in law and in fact America is partly in advance of Europe and 
partly behind her in parliamentary government. 



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THE FEDERiJr CONSTITUTION. 193 

this provision is manifestly that of ensurinpf the greatest 
energy in the application of the military strength of the 
country by entrusting its direction to one hand. But, as 
we have seen, all military legislation is entrusted to con- 
gress, and the president is simply the commander-in-chief 
and not at all the lord of peace and war.* It is thus very 
difficult, if not impossible, to draw the line of demarca- 
tion with absolute certainty between the authority of con- 
gress and that of the president. The general principles 
of demarcation, however, can be established without 
difficulty, and their practical application has hitherto led 
to relatively very few important conflicts. Congress 
must regulate by law whatever is of general importance 
and bears a permanent character, but considerations of 
expediency may demand that even within this, its own 
domain, it should leave the president free to act at his 
own discretion, especially in the more technical matters. 
Of course it is not forbidden to do this. On the other 
hand, the president alone must determine how the mili- 
tary force shall be employed, and he must make all pro- 
visions, temporary and not general in their nature, 
because, from the nature of things, these must be adapted 
to special circumstances. Congress — to make this rela- 
tion clear by some illustrations — provides where forts 
shall be built and what kind of forts they shall be, how 
many and what kind of arms are to be provided, and 
how the men are to be distributed among the different 
branches of the service; but as to what the strength and 
composition of the garrisons are to be, how the arms and 
ammunition are to be distributed, how and where the 
army and navy are to be stationed and moved, — as to all 
this, congress can give the president no directions what- 
ever. In war the entire technical direction of affairs is 
thus incumbent upon the president. Congress has only 
18 



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194 CONSTITUTIONAL LAW OF THB UNITED STATES. 

to decide whether there shall be war and what means it 
will grant the president with which to conduct the war; 
but how the war declared by congress shall be conducted 
by the means granted by it is the exclusive affair of the 
president. Congress may criticise, may express wishes, 
may pass resolutions, but it can prescribe absolutely 
nothing to the president, even though his acts and omis- 
sions be fraught with political consequences of the most 
pre-eminent importance, as, for example, the declaration 
of a blockade may be under certain circumstances. This 
principle was extended so far during the civil war that it 
was acknowledged to be his right to determine whether 
and how far the rebels were to be regarded as a war- 
making power; that is, how far the war should be con- 
ducted pursuant to the provisions of the law of nations,* 
Accordingly, this war-power of the president is not lim- 
ited to matters involved directly in the conduct of war, 
but extends beyond purely military actions into the do- 
main of the exceptional relations which may result from 
war. If, for instance, in a war with a foreign power a 
territory has been conquered, the president can put a 
military governor over it, and this military government 
will end only upon the conclusion of peace, and in case of 
a cession of the territory only upon legislation in the 
matter by congress. This is also true of rebellious states 
vanquished in civil war. In both cases the president may 
establish a provisional civil government, with power to 
organize courts, so that a well-ordered administration of 
justice is rendered possible. In the case of a conquered 
rebel state, the quickest practicable supplanting of mili- 
tary government by a provisional civil government is to 
be regarded as a duty, in so far as the principle applies 
that the president is not authorized to use military power 
1 The Prize Cases, Black, IL, 685. 



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THB FEDERAL OONSTmnTON. 195 

where the laws can be enforced without sach aid. The 
president has the greatest liberty in the choice of means 
not only to attain the most immediate purpose of war, — 
the subjugation of the enemy, — but also to meet the 
further task implied in this, to deprive the enemy of the 
power of levying war again.* But in all this he must 
steadily keep in mind that the ultimate purpose is the 
restoration of the normal, the constitutional condition of 
peace. This maxim leads to the further principle of con- 
stitutional law, that the immense power which the presi- 
dent has as commander-in-ohief in time of war must 
be exerted to its full extent only where the authority of 
the federal government cannot be exerted by peaceful 
methods; that is, where the actual condition of war ex- 
ists. It is only when this is the case, and the ordinary 
courts in consequence of the war cannot exercise their 
functions, that military courts can sit. Where these 
premises do not exist, no one, unless he belongs to the 
army, can be punished by the military authorities.' Spies 
are an exception. As this exception must be acknowl- 
edged to be a necessity, and as it is not always certain 
whether the premises already mentioned exist or not, 
prominent American publicists take the view that it is 
not possible to bring all cases under a fixed rule, but that 
the special circumstances of each must be taken into ac- 
count, even in a decision upon grounds of constitutional 
law.' It is unquestionable that the constitution recog- 
nizes the possibility of its being necessary in time of war, 

1 Lincoln justified hia emancipation proclamation, as ia weU known, 
upon the ground that the freeing of the Blavea was a means of sub- 
jugating the rebels. 

^Ex parte Mittigan, Wallace, IV., 127. 

'The difficult chapter of the so-called ** war-powers '* of the differ- 
ent factors of government has been treated by W. Whiting in a 
strong volume entitled War Powers under the CoMHtutian of the 



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196 CONSTITUTIONAL LAW OF THE UNITED STATES. 

even where the eflBciency of legal authority is entirely 
unimpeded, to suspend the operation of law. It ex- 
pressly grants a " war-power " by which every inhabitant 
of the Union — whether or no the district in which he 
resides is within the limits of the theatre of war or not— 
may be deprived for the whole duration of the war of 
one of the most substantial safeguards of the law. It 
is, however, another question whether the president as 
commander-in-chief can bring about this condition of 
affairs. This question may now be regarded as decided 
against him. 

The constitution provides that " the privilege of the 
writ of habeas corpiia shall not be suspended unless when, 
in cases of rebellion or invasion, the public safety may re- 
quire it " (art. I., sec. 9, § 2). This states only in •what 
cases the writ may be suspended, but not who is to order 
the suspension. At the beginning of the civil war. Attor- 
ney-general Bates claimed for the president the right to 
refuse obedience to a writ of habeas corpus} The final 
result of the conflicts between the president and the 
courts, and the earnest discussions caused by them, was, 
however, a decided victory for the doctrine that the sus- 
pension is a legislative act, and can therefore be ordered 
only by congress or by the president when and only 
when he has been authorized to do so by congress.^ An 

United States. The conclusions which the author reaches have, how- 
ever, been much questioned. 

Indisputably the doctrine last mentioned in the text must not only 
be assented to, but must be given great scope, in order to hold con- 
stitutional the sentence by a military commission of Mrs. Surratt, an 
accessory of Booth in the assassination of Lincoln. The District of 
Ck>lumbia was at the time, however, under military law. 

1 Op, of the Attomeys-Oeneraly X,, 74. 

2 See Horace Binney, The Privilege of the Writ of Habeas Corpus, 
and, also, Martin vs, Mott, Wheaton, Xn., 19. A vote of the houae 



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THB FEDERAL CONSTITUTION. 197 

aot of March 3, 1863, authorized the president during the 
continuance of the rebellion to suspend the privilege in 
the entire domain of the Union or any part thereof, if he 
deemed it necessary. In a proclamation of September 
15, 1863, Lincoln made use of this permission. This law, 
declared to be constitutional by the federal supreme court, 
shows that this war-power may be given the widest 
scope, but the same decision holds that the provision must 
be strictly construed, in accordance with its verbal tenor.* 
Not only in case of a war with a foreign power must 
the writ be suspended only in the event of an invasion, 
but the suspension simply denies to a prisoner the right 
to sue out the writ; it does not authorize arrest without 
legal cause.* 

It is beyond doubt that the president has the power of 
putting himself personally at the head of the army in 
war and of taking its immediate direction into his own 
hands, but the view has always prevailed that this would 
not correspond with the intent of the constitution.' 

of representatives, February 19, 1807, can, however, be interpreted as a 
direct recognition of the principle that there may be circumstances 
under which the privilege of habeas corpus, even without a legisla- 
tive act, must give way to the public safety. 

^ Ex parte MiUigan, Wallace, IV., 133. 

2 Ex parte MUligan, WaUace, IV., 183. 

' Jefferson Davis, the president of the Confederate States, also tried 
the rdle of a general. 

Some of the powers granted by law to the president as conmiander- 
in-chief deserve special mention. His right of promotion is very 
limited. In general the principle prevails that promotion from rank 
to rank shaU depend upon the time of service. In war, however, the 
president may, with the consent of the senate, as a reward for dis- 
tinguished services against the enemy, grant a higher rank " by 
brevet.** The legal position of an officer in the service wiU not be 
changed of itself by brevet-promotion, but the president may assign 
the brevet-officer to duty according to the rank of which he has only 
the title. In time of peace, there can be no dismissal from the 



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198 ooKSTiTunoirAi. ljlw of thb itnited states. 

FOREIGN BEIATIONa 

§ 67. Intbeoouesb with Foreign Powers.- In Ameri- 
can works on constitutional law the statement is fre- 
quently found that the foreign relations of the Union are 

seryice, except upon the judgment of a court-martial or in mitiga- 
tion of a judgment. If an officer is absent without furlough for 
more than three months, the president can cashier him for desertion. 
If he has served forty years, he is entitled to be retired from actiTe 
service. After thirty years' service, an officer may petition to be 
retired ; it is then optional with the president whether or no to grant 
the petition. If an officer is sixty years of age, or has served for 
forty-five years, the president may retire him. The secretary of 
war, when directed by the president, convokes from time to time an 
army retiring board, formed of officers and military surgeons, in 
order to examine and determine whether and how officers haye be- 
come disqualified for service. The decision of the retiring board 
must be approved by the president. Courts-martial are of two 
classes: the *' general" and the regimental or garrison courts-mar- 
tial. The former, in times of peace, can be organised only by 
direction of the general-in-chief commanding the entire army or by 
a general in command of a separate army or ''of a particular de- 
partment ; " in time of war, they may be convened also by division 
and brigade commanders. They should when poerible consist of 
thifteen officei-s and must consist of at least five. Their judgments 
are subject to the confirmation of the president in the f oUowing 
cases : When the commanders named are accusers and the accused is 
an officer under their command (in this case the president appoints 
the members of the court-martial) ; when in time of peace the sen- 
tence is dismissal from the secvioe ; when the sentenced person is a 
general ; when the sentence is death, except in war in cases of a sp: . 
of mutiny, of desertion, of murder, of ''guerilla-marauders,'* and 
also of other high crimes. A death sentence, moreover, requires a 
two-thirds majority oi the court-martial. Officers cannot be tried 
before the lower military tribunals; the decisions of these latter 
can extend only to the deprival of a month's wages, and imprison- 
ment for a month, with or without " hard labor." There is a bureau 
of military justice, composed of a judge-advocate-general, an as- 
sistant judge-advocate-general, and eight judge-advocates. Justice 
is administered in the navy in substantially the same way. B. A. 
Ives, Military Law of the United States, N. Y., 1879. 



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THE FEDBBAL OONSTITimON. 199 

the exclusive domain of the president, or in a manner, of 
the president and the senate. This is manifestly incor- 
rect. Congress has, as we have already seen, a namber 
of the most important powers in relation to international 
affairs.* Unlimited, that statement is true only in regard 
to the intercourse of the Union with foreign powers. This 
is accomplished only through the president, but he must 
have the consent of the senate as to the persons by 
whom he is to be served in this respect. He " shall re- 
ceive embassadors and other public ministers " (art II., 
sec. 3), and he is to appoint, with the consent of the sen- 
ate, '^embassadors, other public ministers and consuls" 
(art. II., sec. 2, § 2).^ He is not the sole bearer of the 

^On April 4, 1864, the house unanimously adopted a resolution, 
"which declared that the United States were not indifferent spectators 
of the occurrences in Mexico and could not recognize a monarchical 
government erected in America under the auspices of a European 
power upon the ruins of a republic. {Congressional Qldbe, Ist Ses- 
sion, 88th Congress, p. 1408.) The secretary of state, W. H. Seward, 
at once instructed Dayton, the ambassador at Paris, to inform the 
French government that foreign affairs did not f aU within the juris- 
diction of congress. The house of representatives in turn, on De- 
cember 10, 1864, declared its position in the foUowing resolution: 
*' Resolved, That congress has a constitutional right to ah authorita- 
tive voice in declaring and prescribing the foreign policy of the 
United States, as well in the recognition of new powers as in other 
matters; and it is the constitutional- duty of the executive depart- 
ment to respect that policy not less in diplomatic negotiations than in 
the use of the national force when authorized by law ; and the pro- 
priety of any declaration of foreign policy by congress is sufficiently 
proved by the vote which pronounces it; and such proposition while 
pending and undetermined " (the rescdution of April 4 was a ** joint " 
one and the senate had not yet passed upon it} '' is not a fit topic of 
diplomatic explanation with any foreign power." The first part of 
this resolution waa adopted by a vote of one hundred and eighteen 
to eight, and the second — beginning " and the propriety " — by sixty- 
eight to fifty-eight. {Conffres9ional Olobe, 2d Session, d8th Congress, 
«5-67.) 

2 There has been much controversy over the question as to whether 



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2(»0 00N8T1TUTI0NAL LAW OF THE UNITBD STATES. 

power of the state in relation to foreign countries, but 
he alone represents it, and that, too, not only where 
one nation confronts another, but also where the rights 
and interests of individuals are involved, — so far as they 
do not come within the jurisdiction of the courts. This 
exclusive right of the president to represent the state- 
power in all international relations must not, however, 
be considered as only a formal right. He is also a co- 
bearer of the state-power, and the exclusive representative 
right involves his having the exclusive right of initiative 
with the exception of the powers granted congress in art. 
L, sec. 8, §§ 10, 11.^ Congress is, indeed, free to express 
its views on everything affecting relations with foreign 
powers, not only by criticism of the president's policy on 
the part of individual members, but also by formal reso- 
lutions and positive propositions. But although such 
action always has considerable actual weight and wiU 
often be the decisive factor in the conclusions of the 
president, it nevertheless cannot legally bind him in any 
way whatever. At most, there may be a doubt as to 
whether the constitutional provision which requires the 
concurrence of the senate to conclude a treaty is to be so 
understood that the senate has a certain, so to speak, di- 
rect participation in the right of initiative so far as treaties 
are concerned. 

§ 58. The Teeaty Power. The constitution says that 
the president " shall have power, by and with the ad- 

and how far the president is to determine at what foreign courts the 
United States shall 'have representatives, and of what kind these 
representatives shaU be. The actual state of things is, that the pres- 
ident without any special legal authorization nominates ministers 
whom the senate either confirms or does not confirm. Fnally, how- 
ever, the decision rests with congress, for congress cannot be com- 
pelled to appropriate the money needed for the ministers appointed. 
1 The powers ** to declare war, grant letters of marque and reprisal, 
and make rules concerning captures on land and water," etc. 



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THB FEDERAL CONSTITUTION. 201 

vice and consent of the senate, to make treaties, pro- 
vided two-thirds of the senators present concur " (art. II., 
sec. 2, § 2). The words " by and with the advice and con- 
sent of the senate " appear also in the provision as to 
the senate's confirmation of nominees to office. And al- 
though debates often take place over the nominations 
sent in by the president, yet the action of the senate is 
limited to the exercise of the right of saying yea or nay. 
The provision was never interpreted to mean that the 
senate was empowered as such, and officially, to advise 
the president to nominate a certain other person for the 
particular office. The question is, therefore, whether in 
the clause concerning the making of treaties the same 
words are to be interpreted in the same manner, that is, 
that the senate is also authorized only to say yea or nay 
when a treaty is placed before it for ratification by the 
president. The actual practice has always been for the 
presidents to call for the " advice " of the senate only 
when they sought its " consent," that is, when they pre- 
sented to it the treaties perfected up to the point of its 
assent. And this was never held to be unconstitutional. 
But it has also happened that a president before negoti- 
ating a treaty has asked the senate for advice; and his 
right to do so has never been disputed.^ And it has like- 
wise happened that the senate has said neither simply ^ 
yea nor simply nay, but has amended the treaty laid be- 
fore it ; and this has not been regarded as unconstitu- 
tional.* I cannot therefore see why the senate should 
not be authorized to request the president to open nego- 
tiations for the purpose of concluding a treaty. But the 
president would unquestionably not be bound to obey the 

1 Washington did this repeatedly, and PoUc did it in 1846 as to the 
treaty with England relative to Oregon. 

3 Thus, for example, the Gadsden treaty of December 30, 1858. See 
my Constituiiondl History, V., pp. 6-9. 



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ooNsimrnoNAif i^aw of thb united states. 

request, and the expression of such a wish is undoubtedly 
also within the power of the house of representatives. 
A constitutional law claim of the senate to a share in the 
right of initiative, however indirect, cannot bear discus- 
sion, except in so far as the right of amendment is to be 
understood in that sense. 

As to the extent of the treaty-power, the constitu- 
tion says nothing, but it evidently cannot be unlimited. 
The power exists only under the constitution, and every 
treaty-stipulation inconsistent with a provision of the con- 
stitution is therefore inadmissible and according to con- 
stitutional law ipso facto null and void. Simple and self- 
evident as this principle is in theory, yet it may be very 
difficult under certain circumstances to decide whether or 
not it has been transgressed in fact. Indeed, the chief dif- 
ficulty arises from the question of the relation the treaty- 
power of the president with the concurrence-power of the 
senate bears to the legislative power of congress. This 
question is answered by saying that these powers must be 
co-ordinate, for treaties like laws are '^ sovereign acts," 
which differ from laws only in form and in the organs by 
which the sovereign will expresses itself. It follows from 
this principle that a law' can be repealed by a treaty ^ as 
well as a treaty by a law.^ If a treaty and a law are in 
opposition, their respective dates must decide whether the 
one or the other is to be regarded as repealed.' Keither 
the principle nor the correctness of these conclusions from 

i Foster m, NeUson, Peters, IL, 268. 

s The Cherokee Tobacco, WaUaoe, XI., 61S. 

* Foster vs. Neilson, Peters, II., 258, 814; Doe vs. Braden, Howard, 
XVI., 685. " The courts of the United States cannot hold a law un- 
constitutional upon the ground that it violates treaty obligations. 
Such a question is an international one, to be settled by the foreign 
nations interested therein and the political department of the gov- 
ernment." Gray vs. Clinton Bridge, 7 American Law Register (N. S.), 
t61; Hammond, L, 22, §54 



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THB FEDERAL OONSTmmON. 203 

it can well be disputed, and they are at any rate valid 
constitutional law. But in spite of this it must be admitted 
that the doctrine has its doubtful side, both in theory and 
practice. It must be called at least an anomaly, that by 
the ex parte action of the president and two-thirds of the 
senators present (who may be only a minority of the whole 
senate), a law can be repealed, the passage of which re- 
quired the concurrence of the house of representatives with 
the senate and president or a two-thirds majority of each 
house of congress. The repeal of a treaty by the enact- 
ment of a law may, moreover, lead the more easily to 
serious consequences, because the incompatibility of the 
law and of the treaty may not be so clearly manifest that 
the foreign power concerned will immediately take notice 
of the law. It is in nowise inconceivable that congress 
itself might know nothing of what it had done, so that 
only after a long time would the fact be established by 
judicial decision, that in this indirect manner a treaty was 
overthrown, the repeal of which had not been contem- 
plated by either of the two contracting parties. 

On still another side this question of the direct relation 
between the treaty-power and the legislative-power makes 
it difficult to fix the limits of the treaty-power. It is cer- 
tain that no authority granted by the constitution to any 
of the factors of government can be withdrawn from it 
by treaty. For that would be a change of the constitu- 
tion and, as such, unconstitutional. But congress may be 
bound by a treaty not to exercise in a certain way a 
power belonging to it, although it might exercise it in that 
way if not bound by the treaty. The freedom of action 
of the house of representatives can thus easily be restricted 
by a treaty to such a degree that the restriction must be 
admitted to be a violation of the constitution, even if not 
strictly of its letter, yet still of its spirit. Thus, for instance^ 



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204 00N8TITUTI0NAL LAW OF THE UNITED STATES. 

the f ramers of the constitution certainly did not wish that 
duties should be fixed in a way repugnant to the views of 
the house of representatives, and yet this might be brought 
about at any moment by a commercial treaty. Of course 
it must not be inferred that in general there should be no 
commercial treaties. But Daniel Webster w^as certainly 
right in advising his countrymen to consider carefully be- 
fore beginning to handle questions of duties in connection 
with treaties.^ The considerations which led him to give 
this advice are of even more importance now. The pres- 
ident and senate in concluding commercial treaties, and 
indeed treaties of all kinds, must keep steadily in mind 
the house of representatives, not only in order not to 
excite its sensitiveness and jealousy and to avoid any con- 

1 See hiB letter of November 25, 1842, to Everett, in Curtis, JW/e ofD, 
Webster, n., 174. The Nation of January 29, 1885, says : " There have 
been treaties negotiated by President Arthur and now before the sen- 
ate, that make, or wiU make if ratified, anew departure in our diplo- 
macy. A series of commercial treaties, that tie the hands of the gov- 
ernment in the future levy of duties on merchandise from aU or a 
large part of the states and colonies on the south of us, must be of 
tremendous significance. The consequences of such treaties for good 
or for evil the country is just beginning to appreciate, and does not 
yet fully comprehend. Fortunately, President Arthur has inserted 
in the Spanish treaty, and presumably in aU the commercial treaties 
that are on the way, a stipulation that they shaU not be exchanged 
and proclaimed as binding tiU not only the senate, but the law-making 
power, has ratified them." As to the important results of this pro- 
viso it says farther on, in the same article : ''If ratified by the senate, 
those treaties must then by the president be submitted to congress as 
a legislative body, and President Cleveland [a president, thus, who bad 
nothing to do with the negotiation and conclusion of the treaties] may 
be caUed on to approve or veto the doings of congress thereon. There- 
fore, the responsibility of ratifying, exchanging and proclaiming the 
Spanish treaty may, and probably wiU, rest in the end on President 
Cleveland. He wiU probably be caUed on to deal with the whole sub- 
ject de novo,** 



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THE FEDERAL CONSTITUTION. 205 

flict with it, but also in order not to act in opposition to the 
spirit of the constitution. It need but be suggested thai 
the treaty-power embraces also treaties of peace to make 
it clear at the first glance that president and senate may 
remain fully within the letter of their constitutional 
authority and yet be in conflict with the fundamental 
ideas of the constitution. Nobody will assert that no 
treaty of peace should be concluded which did not in all 
its parts receive the approval of the house of representa- 
tives. But since the constitution gives congress the right 
to declare war, a treaty of peace, which a considerable 
majority of the house of representatives condemns in toto 
and with great emphasis, would seem to be a stretching 
of the authority of president and senate, according to 
the spirit of the constitution, although in a concrete case 
they may not only be politically fully justified but may 
also merit hearty thanks. 

This leads to the last great question, to wit : Has the 
house of representatives the right to annul a treaty made 
in accordance with the constitution by the president by and 
with the advice and consent of the senate, by refusing its 
co-operation when this is necessary to carry out the stip- 
ulations of the treaty? 

We already know the constitutional provision which 
declares that treaties, like the constitution itself and the 
federal laws, are " the supreme law of the land." As 
far as a treaty requires no legislation in order to become 
operative, federal and state judges are bound in making 
their decisions to regard it as valid from the very moment 
of its conclusion. If, however, the stipulations are of the 
nature of a contract, binding the powers concerned to 
perform certain acts, then the contract must be fulfilled 
by the action of the legislature (or executive) before the 
special provisions of the treaty become binding upon the 



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206 OONSTTTUTIOKAL LAW OF THE UNITED STATES. 

courts.^ Bat there can be no legislation without the co- 
operation of the house of representatives. The other 
factors of government cannot enforce this co-operation. 
The house, therefore, is always able in such a case to 
annul a treaty in fact, although it has no part in the 
power of making a treaty. Whether it has the right to 
do so has repeatedly given rise to very incisive and ex- 
citing debates. These debates have not led, however, to 
any certain decision of the question. The house has not 
withheld its co-operation ; but it has also not dropped its 
claim of the right to act entirely in accordance with its 
own judgment, in cases when the fulfillment of the treaty 
requires it to make an appropriation or do anything else, 
as to which it may incontestably decide under all other 
circumstances with full freedom. 

§ 59. The Appointing Powee. Since the constitution, 
as has already been mentioned, imposes upon the presi- 
dent the duty of taking care that the laws be faithfully 
executed, it grants him, at the same time, the greatest 
influence in the selection of the persons by whom these 
laws are to be executed; that is, the federal oflScers. 
The right is unquestionably a necessary consequence of 
the duty, but only within certain limits. In no state, 
and least of all in a republic which is pre-eminently a 
state founded on law and governed " not by persons but 
by laws," can there bo a reasonable ground for every in- 
ferior officer's being dependent for his office, that is, for 
his bread, immediately and absolutely upon the head of 
the state. On the other hand there are weighty reasons 
why in a republic the head of the state, even in the se- 
lection of those officers, who in a greater or less degree 
must be persons having his personal confidence, should 
not be free from aU control. The provisions of the con- 

^ FoMter V8. NeOwn, Peters, H., 268. 



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THE FEDERAL OONBTTTUTION. 207 

stitution as to the appointment of oiHcials are drawn 
from both points of view. Besides diplomatic represent- 
atives and consuls, only the members of the federal su- 
preme court are explicitly designated as oflBcials to be 
appointed by the president with the consent of the sen- 
ate. For the rest, the general phrase is used of "all 
other officers of the United States whose appointments are 
not herein otherwise provided for and which shall be 
established by law." This provision is, however, limited 
by the clause already mentioned, that "congress may by 
law vest the appointment of such inferior officers as they 
think proper in the president alone, in the courts of law 
or in the heads of departments." It is difficult to under- 
stand how the question as to whether the heads of the 
departments themselves should be regarded as " inferior 
officers," within the meaning of this clause, could have 
been seriously mooted. For the rest, it is manifestly 
entirely within the discretion of congress as to how nar- 
rowly or how broadly it will fix the limits of this idea. 
If it regards it as necessary or expedient it can, conse- 
quently, — save as to the diplomatic corps and the con- 
suls, — reduce the power of the president over appoint- 
ments to a minimum, and could unquestionably do so in 
such a manner as not to increase the power of the heads 
of departments unduly. The legal regulation of the 
question is not confined to enumerating the offices and 
granting the power of appointment to the president, the 
courts of law or the heads of departments. This power, 
taken in connection with the duty of establishing the 
offices by law, is broad enough to embrace the right to 
establish all provisions deemed expedient as to the quali- 
fications required in appointees, the time during which 
and the conditions under which their incumbency in 
office is to be ensured, the grounds of claims to promo- 



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208 CONSTITUTIONAL LAW OF THE UNITED STATES. 

tions, etc. In a word, the so-called " civil-service reform," 
by which the federal offices are to be divested of the 
character of " spoils," with which party services are paid, 
is in no kind of opposition to any part of the constitutional 
law. The framers of the constitution cannot justly be 
held responsible for the grave abuses in the civil service 
since the presidency of Andrew Jackson. The constitution 
renders it possible to satisfy fully in every respect all the 
requirements of a modern civilized state as to the tenure 
of office.' Nor can they be reproached with having made 

1 A good beginning has been made herein by the law of January 
16, 1883, the so-called Pendleton biU. The most important provisions 
of this very significant law are the following: The president is 
authorized to form a civil-service commission of five persons, of 
whom only three at most shaU belong to the same political party; 
two must be federal officers of different departments, residing in 
Washington, and three occupy no other federal office. The task of 
the commission is to assist the president in formulating the regula- 
tions necessary for the execution of this law, on the basis of the fol- 
lowing principles : The federal offices which have already been or 
will be classified for this purpose are to be filled by competitive ex- 
aminations. Preference is to be given those applicants who have 
passed the best examinations. The offices in the departments at 
Washington are to be distributed as far as practicable in proportion 
to the population among the states and territories and the District of 
Columbia. A period of probation must precede permanent employ- 
ment. The commission may order non-competitive examinations in 
such cases as it sees fit. It must regulate and control the examina- 
tions. It must annually report on everything covered by this law 
to the president for the use of congress and may use the report to 
make any further suggestions. The commission is authorized to i^ 
point an examiner-in-chief, whose duty it is inter alia to see that the 
examining boards act alike. The commission apix>ints the examining 
boards, consisting of at least three federal officials in the particular 
state or territory; the heads of the departments to which these 
officials belong must be consulted in relation to their appointment; 
the examinations are to be held at least twice a year. The heads of 
departments must classify inferior officials in conformity with the 
intent of this law ; officials whose appointment must be confirmed by 



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THB FEDERAL OONSTTIUTION. 

the president too dependent upon the senate as to the 
offices which he mast fill with its consent. The nomina- 
tion, that is, the selection of persons to be nominated, is 
left w}iolly to him. The co-operation of the senate comes 
into play only upon the nomination and is limited to 
that. If it refuse to confirm, the president again has full 
and free choice among all citizens, and it has happened 
that he has repeated his first nomination. And if the 
senate confirms he is still not yet irrevocably bound. The 
constitution provides in another paragraph that he shall 
commission all the federal officials (art. II., sec. 3). As 
long as he has not done this the appointment is not per- 
fected, and he can send a new nomination to the senate. 
But the appointee has a legal claim to the office from the 
moment the commission is signed, even if it has not yet 
been delivered to him.* No difficulties arise from the 
fact that the senate does not remain in permanent ses- 
sion. Vacancies which happen during the senate's recess 
are filled by the president provisionally.' The commis- 

the senate shall be classified and subjected to examination only upon 
the request of the senate. Four articles forbid members of congress 
and aU federal officials from asking in any way whatever for money 
contributions for any political purposes whatever froui federal of- 
ficials and employees, and also from receiving such taxes, and es- 
pecially from inducing by threats or promises such contributions for 
political purposes. The prohibition extends to all in nil ]ilaces where 
federal officials or employees have to perform their official duties. Vio- 
latioDB of these provisions are to be punished by fines of as much aa 
$6,000 or by imprisonment for three years or less, or by both fine and 
imprisonment. See J. M. Comstock, Civil Service in tlie United 
Staler, 1885. 

1 Marbury V8. Madison, Cranch, I., 156. 

* The unanimous opinions of several attorney-generals claim for the 

president the right of filling provisionally any vacancies which may 

occur daring the session. They construe the word ** happen " aa 

synonymous with " exist.** Certain weighty reasons of expediency 

14 



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210 CONSTITUTIONAL LAW OF THE UNITED 8TATE8. 

sions he issues in sach cases expire at the end of the next 
session of the senate (art. II., sec. 2, § 3).^ 

§ 60. The Power of Pardon. The president's power 
of pardon does not extend nearly as far as that of the 
rulers in monarchical states, but the interpretation of the 
constitutional provision concerned by various decisions of 
the United States supreme court has made this power so 
extensive that several of the principles set forth in these 
decisions have been most energetically attacked by lead- 
ing American publicists. The president is authorized '^ to 
grant reprieves and pardons for ofifenses against the United 
States, except in cases of impeachment " (art. II., sec. 2, 
§ 1). The president thus has not simply a right of par- 
don. He can pardon only for offenses against the United 
States, but as to these the power is entirely unlimited, 
for, according to the supreme court, the word " pardons" 
embraces everything which at the time of the adoption 
of the constitution was understood thereby in English 
law.^ He can remit every punishment, from. a money- 
penalty imposed for a violation of the internal-revenue 
or customs laws, up to and even including the death pen- 
alty. In cases of forfeiture, as far as others have acquired 
a legal right to the goods forfeited, the pardon naturally 
remains inoperative. And it does not effect a reinstate- 
ment in a forfeited office. For the rest, however, a full 
pardon annuls every legal consequence of a sentence. 
Indeed the pardon need not be a complete one. It may 
be coupled with a condition ; and this, as a rule, tends to 

certainly favor this interpretation, but the wording does not in taj 
opinion justify it. 

1 The important question of remoTal from office has already been 
treated. It may be mentioned here that the president cannot lefnso 
the resignation of an official. 

* Ex parte WOU, Howard, XVllL, 809. 



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THB FEDERAL OONSnTUTION. "211 

a mitigation of punishment.^ Nevertheless, it is not nec- 
essary to put the mitigation in the form of a condition. 
It may be declared directly as a remission of part of the 
sentence. On the other hand, a penalty of an entirely 
difiFerent kind from the one imposed cannot be inflicted.' 
The most important of all the conclusions from the inter- 
pretation given the word " pardons " is unquestionably 
that a pardon may be granted before sentence has been 
passed, yea, even before any legal procedure whatever 
has been begun against the accused.' From this comes 
the right to issue a general amnesty. The president is 
subject to no legal control in the exercise of these far- 
reaching powers. Any legislative encroachment by con- 
gress upon the pardoning power is excluded. The only 
remedy against a coarse abuse of it is the right of im- 
peachment.^ ^ 

THE JUMSDICrnON OF THE FEDERAL COURTS. 

§ 61. General Pbinciples and Points of View. The 
experience endured under the articles of confederation 
had impressed the more far-sighted patriots with the con- 
viction that a real federal government could not be 
created as long as the sovereignty of justice was with- 
held from the Union. It followed directly from this 
principle that the jurisdiction of the federal courts must 
be oo-extensive with the sphere of the federal legislature 
and the federal executive. Political considerations and 
grounds of expediency, however, determined the framers 

1 Ex parte Wells, Howard, XVIII., 807. This is the leading qoes- 
turn decided in this case. 

«JWd., 806. 

^Ex parte Garland, Wallace, IV., 800. See Tiffany's (p. 886 e< 
seg.) keen polemic against this doctrine. 

4 It may be noted that the president may withdraw and annul an 
nndeliverad pardon granted by his predecessor. 



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212 OONSTITUnONAL lAW 07 THB UIOTED STATES. 

of the constitation to extend this jarisdiction even beyond 
these limits. But on the other hand, they did not de- 
duce from that principle the conclusion that all litigation, 
in which the constitution, the federal laws or the acts and 
omissions of federal officials came into consideration, 
should be decided only in the federal courts. The con- 
stitution is a constituent part of the fundamental law of 
all the states and the federal laws are ^^ the supreme law 
of the land " and consequently also of each several state. 
The federal constitution and laws must therefore come 
into question in innumerable litigated cases, which nn- 
doubtedly belong to the state tribunals as long as the 
Union bears the character of a composite state, so far as 
its legal existence is concerned. It was absolutely neo- 
essary to give jurisdiction to the federal courts in only 
two cases: first, where the preservation of the nationsiL 
authority — viewed from the stand-point of duties as well 
as of rights — demanded it ; and, second, where uniformity 
of decisions was required. But in the second instance the 
existence of an invincible necessity can, however, be 
recognized only conditionally. The jurisdiction of the 
state courts need not be completely excluded on principle, 
in such cases. If the state courts are subordinated to the 
federal courts, in these* cases, uniformity of decision is 
sufficiently assured. It is equally as true, however, that 
no principle requires that in all such cases the state courts 
must be competent to decide in the first instance, while 
there are weighty grounds of expediency to the con- 
trary. As the constitution provides nothing on this point, 
the question must be regulated by federal legislation, and 
congress need guide itself in such legislation only by con- 
siderations of expediency. But as the constitution is silent 
not only in such cases, but in general, as to whether and 
when the federal courts shall have exchisive jurisdiction. 



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THB FEDERAL 0ON8T1TTJTION. 213 

congress must always determine this. This does not^ 
however, override the fact that the fundamental ideas of 
the constitution imperiously demand in certain cases the 
establishment by law of exclusive jurisdiction, and in 
others, on the contrary, may as unconditionally require 
the concurrent jurisdiction of the state courts. Where 
this concurrent jurisdiction exists in accordance with the 
federal laws, it is not, however, created by them. Congress 
is not constitutionally capable of transferring even the 
slightest portion of the legal sovereignty of the United 
States to the several states or of delegating it to them ; but 
the state courts have jurisdiction because the legal sover- 
eignty indwelling in the states, before the adoption of the 
constitution, was not taken from them so far as these 
cases are concerned by the constitution or by the federal 
laws passed by virtue thereof.^ Where the states have 
concurrent jurisdiction, their rules of procedure always 
prevail. Congress can vest the execution of the legal 
sovereignty of the United States only in federal courts 
and the authority of these courts rests exclusively upon 
the constitution and the federal laws enacted under it 
{American Insurance Co. vs. Canter^ Peters, I., 611); they 
have no common law jurisdiction ( Wheaton vs. Peters^ 
Peters, VIII., 591, 658).* In the third place, where, from 

1 Martin vs. Hunter* 8 Lessee, Wheaton, I., 304. On the other hand 
the supreme court in the noted case of Prigg vs. Pennsylvania (Peters, 
XVI., 539) laid down the principle that the states could not grant to 
their courts the right to carry out federal laws. Just as little can the 
authority of the federal courts he extended hy state laws. But the 
federal courts may decide, when new rights are created by state laws, 
whether the law-suits ari&ing thereunder faU according to federal 
law within the domain of the federal courts. Ex parte IfcMeZ, Wal- 
lace, 2III., 243. 

»In general — the exceptions to the rule will be hereafter noted — 
the legal sovereignty of the United States thus comes into play first 
only by virtue of federal legislation. The answer to the quration^ 
how far the sovereignty of law extends, can be found only in the 



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314 ooNSTrruTioNAL law of thb unitkd states. 

motives not of principle, but of expediency, the author- 
ity of the federal coarts has been extended beyond the 
spheres of congress and of the president, the concarrent 
jurisdiction of the state courts is of course required and 
their subordination to the federal courts is not a matter 
of principle. In these cases the jurisdiction of the fed- 
eral courts depends upon the person or the residence. 
Therefore the federal courts in their decisions in such 
cases regard as decisive the local law, — the common law, 
the law of custom, the statutory law and the constitution 
of the state, and that, too, as interpreted by the state 
courts,' provided, however, the judicial decision of the 
question at issue is dependent solely upon the legal atcUus 
of the parties in the particular state.' If the decisions 
of the highest state court on the point at issue are in 
conflict with one another, the federal courts follow the 
last decision.' 

In addition to the above three categories, which, if the 
cases be divided according to their objects, embrace all 

constitution, but the laws must determine the authority of the federal 
courts. Congress can neither decrease nor increase the legal sov- 
ereignty fixed by the constitution, but the constitutional-law powera 
rest (they lie " dormant " ) till it has directed that— eventually also 
when and how — they are to be exercised by certain federal courte. 
In many cases, in which it could indisputably do so, it has not so 
ordered, or at least has not done so, to the f nUest possible extent. 
But it is not congress, it is the constitution, which grants the federal 
ooorts their powers; congress provides only that, when and how the 
powars created by the constitutional law shall be exercised by the 
differ^it courts. 

iLivingstorCa Leasee V8. Morae, Peten, VIL, 4G9; Shelby vs. Ouy^ 
Wheaton, XL, 861. 

SThe decisions of the state courts are therefore not followed as 
of course, when they involve passing judgment upon a national 
power, upon rights, privileges or exemptions claimed under the 
federal constitution, upon principles of law universaUy valid, upon 
state laws which have the nature of contracts, eto. 

< Green vs. Neafa Leaaee, Peters, VL, 201. 



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THE FEDEEAL CONSTITUTION. 215 

litigation of every kind in the federal courts, there is an- 
other triple tlivision possible, based with equal clearness 
and just as naturally upon the particular constitutional 
provision concerned. It is not easy to find a perfectly 
appropriate name for the determining principle of this 
second tripartition, but the basis of division may be most 
correctly designated as the reason of the suit. And as 
" object " and " reason " are sometimes very diflBcult to 
separate or distinguish, while they are yet manifestly not 
synonymous, so the three classes of each partition are 
also co-extensive in great part, but by no means com- 
pletely so. The sovereignty of law of the Union is 
based upon: first, the law to be applied; second, the par- 
ties to the suit; third, the thing involved. 

§ 62. Law-sihts Abisinq Undee the CoNSTmrnoN, thib 
Fbdebal Laws and Tkeaties. The two first groups co- 
incide most closely, for where the nature of the law to 
be applied is the condition of the legal sovereignty of 
the Union, this is always because the preservation of the 
national authority demands it. The constitution pro- 
vides that ^' the judicial power shall extend to all cases 
in law and equity arising under this constitution, the laws 
of the United States and treaties " (art. III., sec. 2, § 1). 
It has already been said that the word " cases " is not 
synonymous here with " disputed law points." It must 
be understood as a technical term, and all " disputed law 
points" which are of a political nature are subject to de- 
cision by the political powers, — by the president or by 
congress, or by congress and the president. Moreover, 
all law cases in which, in a general way, the constitution, 
the federal laws or treaties come into question, do not 
"arise under" them within the meaning of this provis- 
ion. The words " arising under " are to be understood 
as meanmg that the correct decision of the legal dispute 



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916 CWNBTTrunONAL LAW OF THB UNITED STATES. 

must depend upon the correct construction and interpre- 
tation of the constitution, of a federal law, or of a treaty.* 
If the constitution comes in this sense into question, the 
points involved may be whether or no a federal or state 
law, or the act of a federal or state ofDcer, is constitu- 
tional Congress has not thought it necessary to give ex- 
clusive jurisdiction to the federal courts in any one of 
these cases. In its opinion, it has sufficiently assured the 
preservation of the national authority and the uniformity 
of judicial decisions by giving the parties the power of 
transferring a case pending before a state court to a fed- 
eral court. This can be done only on certain carefully 
defined conditions.* The federal supreme court is the 
court of last resort. Its decision may bo, in fact, re- 
quired when the constitutionality of a federal law or of 
a treaty is called into question, or where the action in- 
volves a power, a title, or a right of some kind claimed 

1 Cohens vs. Virginia, Wheaton, VL, 879. 

'In aU cases to which the legal sovereignty of the United States 
extends, congress may permit a removal of the case from the state 
to the federal coui*ts (Railway Company vs. WJiitton, WiiUaoe, XIII., 
S70). This is not necessarily done by appeal. A case may be re- 
moved before it is decided. Even after a decision, the removal is not 
always by appeal in the technical sense of the word. It is usaaUy 
by writ of error. On an appeal questions of both fact and law are 
re-examined. Under a writ of error only questions of law are re> 
examined. As to what is more properly called " removals of cases,** 
that is, removals before judgments, see details in Cooley, Principles, 
121^128. If the case involves only money, or money's worth, the 
sum claimed must be at least $500 to permit a removal. Federal 
ofBcers or other persons sued under a tax or customs law of the Union 
have had, since 1883, special legal rights of removal. The central 
idea of the whole system of transferring cases is always more or leas 
that of making surer of an impartial judgment. Every direct or 
indirect limitation, by state law, of the right of removal under 
federal laws is nuU and void. J. F. DiUon, Law of Removal cf 
Causes, 8d ed., St. Louis, 1881. 



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THB FEDERAL OONSTITUTIOIT. 217 

to exist under the constitution, a federal law or a treaty, 
and the state supreme court has decided against the va- 
lidity of the claim. If, however, the judgment depends 
upon whether or no a state law or a right claimed under 
the authority of a state is opposed to the federal consti- 
tution, federal law or a treaty, an appeal can be taken to 
the federal supreme court only in case the supreme court 
of the state has held the state law to be valid. Again, 
other cases "arise under" the federal laws or treaties, 
which question not their validity, but the correctness of 
their interpretation. Uniformity of judicial decision re- 
quires the federal courts to take jurisdiction of such 
cases, and congress has made this jurisdiction in part 
exclusive. 

Next in order come four kinds of legal controversies 
to which, from the nature of the matter at issue, the 
legal supremacy of the United States must extend. In 
three of them the basis of jurisdiction is the personality 
of the parties. In the fourth — cases of admiralty and 
maritime law — the nature of the law to be applied is not 
to be understood as the basis of jurisdiction in the same 
sense as it has been in the preceding paragraph. 

§ 63. Embassadors, other Diplomatic Agents and Con- 
suls. As to this provision of the constitution, I need 
observe only that these representatives and agents of for- 
eign powers need not necessarily be " parties" to a suit 
The jurisdiction extends " to all cases affecting " them, — 
an expression vague enough to leave its interpretation 
quite at the discretion of the judge. 

§ 64. Admiralty and Maritime Jurisdiction. The ju- 
risdiction of the federal courts in admiralty and maritime 
cases is to a very large extent exclusive.^ Congress and 

1 It is so in all cases " of prize, maritime torts and contracts, and 
liens for maritime services/' as far as these are not processes in per^ 



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^18 ooNSTmrnoNAL law of the united states. 

the coarts have given this grant of power a broad con- 
struction. In doing so they have relied especially on the 
phrase " maritime jurisdiction," in order to escape a too 
narrow technical explanation of the word " admiralty." 
The old opinion that the power extended only to tide- 
water has been wholly abandoned. Wherever navigation 
exists in the United States, there this constitutional pro- 
vision extends {Jaokson vs. The Magnolia^ Howard, XX-, 
8»6, and The Genesee Chief, Ibid., XII., 443). The grant 
of jurisdiction implies the existence in congress of the 
right of legislation on these matters; but the jurisdiction 
extends only as far as congress has exercised its legisla- 
tive power {Ibid.). 

In all the subsequent provisions, the word ^' cases " is 
replaced by "controversies" and the word "all" is 
dropped. It is generally admitted that this change is not 
simply one of style but that it has a substantial meuning. 
So far, however, there has been no precise and authorita- 
tive establishment of this meaning. The doctrine that 
the legal supremacy of the United States does not extend 
to " all " legal controversies, especially those which barely 
come within the outer borders of these provisions of the 
constitution, is of no practical value, as long as nothing 
can be said as to which controversies are excluded. The 
explanation of the other point is less unsatisfactory. It 
is said that by "controversies" only civil proceedings 
are to be understood.* 

§ 65. Controversies to which the United States are 
A Party. The United States cannot be sued at all in a 

sonam, Cooley, Principles, 114. See especially the decisions of the 

mipreme court in The Moses Taylor, "Wallace, IV., 411, and Hine tw. 

» Trev&r, Ibid., 555. Many American jurists declare that the jurisdio- 

i tion of the federal courts in admiralty and maritime cases is entiiely 

exclusive; but they have only ** suits in rem " in view, 

» Cohens vs, Virginia, Wheaton, VL, 264, 411, 413. 



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THE FEDERAL OONSTITDTIOSr. 219 

state court {Ableman vs. Booths Howard, XXI., 506). 
They can be sued before their own courts only at their 
own pleasure, that is, only in those cases where the fed- 
eral laws permit. Land bought by the United States 
within a state and used for no particular purpose is sub- 
ject like private property to condemnation for public pur- 
poses under the authority of the state. 

§ 66. CONTROVEESIES BeTWEEN TwO OK MoEB StATBB. 

This provision is unquestionably of the utmost impor- 
tance, for in case of a controversy between states, neither 
would be willing to commit the decision imconditionally 
to a court of the other. Just because a peaceful deter- 
mination of such conflicts could only be assured by mak- 
ing them subject to the legal supremacy of the Union, 
the omission of the word " all " might become under cer- 
tain circumstances of much significance. Since the abo- 
lition of slavery and the annihilation of the doctrine of 
state sovereignty — in its old form — by the result of the 
civil war, it is much less to be feared than formerly, that 
a controversy can ever arise between the states, in which 
the jurisdiction of the federal courts might be seriously 
and energetically disputed. Their jurisdiction over ques- 
tions of boundary between the states has been established 
for many years by quite a number of decisions of the 
federal supreme court. 

The legal controversies enumerated in the remaining 
provisions of the constitution all belong to those placed 
under the jurisdiction of the federal courts for reasons 
of expediency. Moreover, the decisions of the federal 
courts in these cases do not bind the state courts, which 
always have concurrent jurisdiction in them. The fed- 
eral courts as a rule, as I have stated, follow the state 
courts in these cases, but there is no uniformity of legal 
decision in them. 



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920 00n8tituti0nal law of the unitkd states. 

§ 67. Controversies Between a State and Citizens 
OP Another State. It is not sufBcient that a state be 
interested in a legal controversy; it must be a party to 
it.^ According to the original and undoubtedly the cor- 
rect interpretation of this constitutional provision by the 

^supreme court {Chiaholm m, Georgia-y Dallas, II., 419), 
a state could be brought before the federal courts not only 
as plaintiff but as defendant. Public opinion was against 
this and the eleventh amendment was adopted. This 
withdrew from federal jurisdiction suits against a state 
by citizens of another state or by citizens or subjects of 
any foreign state. This amendment has led to serious 
complications, for different states have repeatedly failed to 
comply with their obligations as debtors. Attempts were 
recently made (1883) to bring them before the federal 
supreme court by having the owners of their defaulted 
securities assign the bonds to their own states which were 
then to appear as plaintiffs. The supreme court, how- 
ever, has decided {New Hampshire vs. Louisiana and 
New York vs, Louisiana) that this was inadmissible, be- 
cause it would be an evasion of the eleventh amendment 
Whether the agitation begun to repeal the amendment 
will succeed, remains to be seen; but this can scarcely be 
hoped for, as quite a number of the states are at present 
directly interested in maintaining it. This amendment 
does not, however, prevent appeals to the federal supreme 
court if the decision of the state court has brought into 
question rights, titles, etc., under the constitution, the 
federal laws or treaties {Cohens vs. Virginia^ Wheaton, 
VI., 2G4). A suit may be brought against a corporation 
chartered by a state, even if the state holds all the stock 

' {Bank of Kent/ucky vs. Winter, Peters, II., 318). 

1 Ofbom V8. Bank of United States, Wheaton, IX., 738L 



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THB FEDERAL OONSnTUTIOK. 221 

§ 68. CONTROVKBSIES BETWEEN CiTIZENS OF DlTFEBENT 

States. The expression " citizen " is not to be understood 
here literally. It means "inhabitant." Even corpora- 
tions are regarded as inhabitants. Inhabitants of the 
territories or of the District of Columbia, however, are 
not included. The jurisdiction granted by this provision 
to the federal courts has been by no means put iii full 
force by congress in its legislation. 

§ 69. CONTROVEBSIES BETWEEN CiTIZENS OF THE SaMX 

State Claiming Lands Under Grants of Different 
States. This provision also applies when the states con- 
cerned originally constituted one state. 

§ 70. Controversies Between a State or its Citi- 
zens AND Foreign States, Citizens or Subjects. For- 
eign corporations, and also immigrants who have declared 
their intention of becoming citizens, are " foreign," within 
the meaning of this clause. 

PRACTICE AND PLEADING. 

§ Yl. Rules of PRAcmcE were almost wholly left to 
congress to determine. But on one substantial point the 
constitution has given congress no discretion. " In all 
cases affecting embassadors, other public ministers and 
consuls, and those in which a state shall be a party, the 
supreme court shall have original jurisdiction " (art. III., 
sec. 2, § 2). These cases are the exceptions to the rule, 
according to which the judicial power of the United 
States can come into operation only after legislation by 
congress. Congress is authorized, here, as everywhere 
else, to enact the more definitive provisions of procedure, 
but if it does not do so, the supreme court may itself 
provide the modvs procedendi {Florida vs. Georgia^ 
Howard, XVIL, 478). It is uncertain whether or no the 
constitution intended that this original jurisdiction should 



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OONSnTUnONAL LAW OF THB UlilTBD STATES. 

also have been exclusive. Jurists' opinions differ, and so 
do judicial decisions. The affirmative view has always 
had the more support, but legislation has not fully come 
up to it. For while a suit against embassadors, consuls, 
etc., can be maintained only in the supreme court, they 
may bring suits in other courts as well. On the other 
hand, it is generally admitted that congress cannot ex- 
tend the original jurisdiction of the supreme court. The 
extent of its jurisdiction in appeals is practically left 
wholly to the discretion of congress. The constitution 
says: "In all the other cases before mentioned, the su- 
preme court shall have appellate jurisdiction, both as to 
law and fact, with such exceptions, and under such regu- 
lations, as the congress shall make." Congress must 
therefore give original jurisdiction to other federal courts, 
as far as this is not granted in the first sentence to the 
supreme court. Congress may also give them an appellate 
jurisdiction. The supreme court has this appellate juris- 
diction only so far as it is expressly granted by the laws. 
The circuit courts, consequently, sit in some cases as 
courts of first as well as last resort.^ A case in which a 
jury has rendered a verdict does not come within the 
category of those in which the supreme court may re- 
examine a question of fact on appeal. The seventh 
amendment, to be hereafter discussed, establishes this. 

1 Details as to practice and pleading in the different federal courts 
are beyond the scope of this work. The most necessary are grouped 
in Cooley, Principles, 120 et seq. Among the comprehensiye books 
on the subject are : St. D. Law, The Jurisdiction and Povoers of the 
U. 8. Courts, Albany, 1852; G. T. Curtis, Commentaries on the 
United States Courts, Phila., 1854; A. Conkling, Treatise on the Or- 
ganization, Jurisdiction and Practice of the Courts of the U, 8., 6th 
ed., Albany, 1870; B. R. Curtis, Jurisdiction, Practice and Peculiar 
Jurisprudmce of the Courts of the U. 8,, Boston, 1880; R. Desiy, 
Federal Procedure, 5th ed., San Francisco, 1881. 



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THE FEDERAL CONSTITUTION. 223 

The United States therefore cannot appeal in a criminal 
case, for in "crimes" — impeachments, of course, ex- 
cepted — the decision must be by jurors (art. III., sec. 2, 
§ 3). Everything which is a crime by the common law 
or state laws docs not come within the limits of this para- 
graph of the constitution. It refers only to those crimes 
which are within the jurisdiction of the federal courts. 
The conditions precedent of the exercise of this jurisdic- 
tion are that the act in question has been declared to be' 
a crime by federal law, and that congress has conferred 
the requisite jurisdiction upon a certain court.^ In the 
latter respect, congress has not complete freedom of ac- 
tion. If the crime was committed in a state, the trial 
must take place within that state and in the particular fed- 
eral district.' If the crime was not committed in a place 
geographically or legally within a state, but in a terri- 
tory, in the District of Columbia, in Indian Territory, in 
a fort, arsenal or other place subject to the exclusive 
jurisdiction of the United States, then the place of trial 
must have been fixed by law. 

EXPRESS LIMITATIONS OP AUTHORITY AND PROHIBI. 

TIONS. 

Many of the provisions belonging under this head have 
already been treated elsewhere, and may therefore re- 
main unnoted here. So, too, those provisions which con- 
cern the rights and legal safeguards of individuals will 
be passed over here, because they are to be treated in a 
special section. 

§ 72. Bills op Attainder and Ex Post Facto Laws. 
" No bill of attainder or ex post facto law shall be passed " 
(art. L, sec. 9, § 3). It is not stated who is forbidden to 

1 TJ, S. V8, Coolidge, Wheaton, I., 815; U. 8. V8, Hudson and Good- 
win, Cranch, Vn., 83. 
* Sixth amendment. 



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OONBTITDTIONAL LAW OF THE UNITED STATES. 

pass such measures. The next section of the same article, 
however, says: "No state shall pass any bill of attainder 
[or] ex post facto law." Hence follows directly the im- 
portant principle that (as the courts have always held) all 
prohibitory clauses of the constitution containing no 
words extending their import bind only the federal 
powers.^ According to a decision of the supreme court 
{Cumminga vs. State of Missouri^ Wallace, IV., 323, 324) 
the expression "bill of attainder" is to be understood 
here in the broadest sense, so that it includes also the so- 
called bills of pains and penalties. In other words, not 
only can no death sentence be imposed by an act of the 
legislative power, but the latter cannot take the general 
exercise of justice in criminal cases into its own hands. 
In the United States a punishable crime is only one 
which is declared to be such by existing laws, and a man 
accused of such a crime can be made answerable only 
under existing laws and before a competent court.^ A 
correct definition of the expression " ex post facto laws " 
is not to be got by translating and taking tho Latin in 
its literal sense. The framers of the constitution used 
the Latin words because they desired to speak only of 
what this technical term means in English law, and not 
of all retroactive laws. Indeed, all ex post facto laws 
are retroactive, but all retroactive laws are not ex post 

1 It suffices to mention Barron vs. Mayor of Baitimore, Peters^ 
Vn., 243. 

2 In the so-called Test-Oath Cases, viz. : Cummings vs. State ofMi^ 
souri, supra, and Ex parte Garland, WaUace, IV., 333, the supreme 
court gave such a wide scope to this eminently teclmical expression, 
that most jurists wUl probably agree with the minority of the judges. 
The controversy in the Cummings case was over certain provisions of 
the Missouri constitution (and in the Garland case over certain fed- 
eral laws) which made the capacity of occupying an office depend 
upon taking a test-oath as to non-participation in the rebeUion. In 
both cases five judges were arrayed against four. 



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THB FEDESAL CONSTITUTION. 225 

facto. The latter relate only to crimes and misdemean- 
ors covered by the criminal law. Neither congress nor 
the states can give a law a retroactive force in such a 
way as to make an act, already done and not punishable 
when done, punishable now ; or to increase the punish- 
ment or the legal grade of a punishable act ; or to lessen 
the legal conditions of conviction ; * or to withdraw a 
legally-vested right on account of an action now first 
made punishable ; ^ or, finally, to deny to a person accused 
of crime the opportunity of pleading something — for in- 
stance, a declaration of amnesty, a former sentence or an 
acquittal — which would otherwise assure him immunity.' 
§ 73. Nobility. Both the United States and the states 
are forbidden to grant any title of nobility (art. I., sec. 9, 
§ 8,* and sec. 10, § 1). 

§ 74. Religious Liberty. The principle of the separa- 
tion of church and state is as completely carried out in 
the United States as it can be in any nation based upon 
law ; but religious liberty is not, as most Europeans be- 
lieve, guarantied by the constitution. The latter contains 
only two clauses as to religion. It prohibits a " religious 
test ... as a qualification to any office or public 
trust under the United States" (art. VI., § 3).» The 
word " test " is unquestionably to be understood in the 

1 In 1798, in CaHder vs. Bull, Dallas, m., 890, Justice Chase defined 
these four classes. 

2 See the convincing criticism of this part of the Test-Oath Crises 
by Pomeroy, pp. 840-847. 

•Cooley, Principles, 286. 

<Here, too, belongs the provision that no officer of the United 
States "shall, without the consent of the congress, accept of any 
present, emolument, office or title of any kind whatever, from any 
king, prince or foreign state." 

^The federal and state officers who must pledge themselves to Bai>- 
port the constitution are free to take a mere affirmation in lien of an 
oath. 

16 



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CONSTITUnOKAL LAW OF THE UNITED STATES. 

technical sense which it possesses in the ecclesiastical- 
political history of England, but nevertheless it would 
be unconstitutional if — for example — faith in God 
should be declared necessary in order to become a federal 
officer. The United States are not legally a Christian 
state; they are not even a theistic state; but just as little 
are they a pagan state. They are simply a state. The 
religious convictions of the people and the churches as 
communities of believers do not exist, so far as the United 
gtates are concerned, L e,j all these things lie without 
their sphere of action.* The federal government has 
only the powers granted by the constitution, and the 
latter mentioned religion only because it appeared safer to 
express explicitly what complete silence would have im- 
plied. The second provision also contains but a single pro- 
hibition. The first amendment forbids congress to enact 
any law " respecting an establishment of religion or pro- 
hibiting the free exercise thereof."* "An establishment 

1 The attempt has been repeatedly made to bring into the constitu- 
tion in some form or other a recognition of God, but the people have 
never taken kindly to the thought, perhaps less because they are 
quite conscious of the objections to it on principle, and regard them 
as decisive, than because they consider the matter simply unneces- 
sary. 

A treaty concluded with the Bey of Tripoli November 4, 1796, says : 
" The government of the United States is not in any sense founded 
on the Christian religion." U, S, Statutes at Large, Vm., 155. 

2 The Mormons, on account of this amendment, declare that the 
laws against their polygamy are unconstitutional. And it has 
seemed doubtful to many non-Mormons whether congress was author- 
ized to assail this "remnant of barbarism" with penal laws. The 
question is certainly not wholly without difficulty, for it is well to 
note that the free "exercise" of a religion cannot be prohibited. 
But the demands of sound common sense have won the victory over 
scruples of constitutional law. A state cannot be in duty bound to 
look with folded arms on the subversion of its fundamental principles 
of morality because the attack is cloaked und€$r the form of practicing 



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THB FEDEBAL CONBTITirnON. 227 

of religion " is also a technical expression borrowed from 
England, but it must not be understood in its narrowest 
technical sense. Congress is not only prohibited from 
making any religion whatever a state religion or any 
church whatever a state church, but it cannot make any 
laws favoring one religion or church more than any other. 
As far as the federal constitution is concerned, not only 
are all religions and churches tolerated, but they have 
all perfectly equal rights, inasmuch as congress has no 
powers whatever in relation to any of them or all of 
them. On the other hand, neither of the two constitu- 
tional provisions as to religion imposes any obligation or 
limitation upon the states. But the constitutions of the 
states themselves, without exception, contain provisions 
substantially the same as those of the federal constitu- 
tion. This is not, however, because the latter binds them 
to this. Actually and legally the complete religious liberty 

a religious dogma. Bat although, undoubtedly, no such insane and 
suicidal obligation can be deduced from this constitutional provision, 
it must, nevertheless, be admitted that the limits to which congress 
may proceed, in its application, cannot be defined with absolute cer- 
tainty. If its application has once become a necessity, only the 
sound sense of the people can prevent the transgression of the cor- 
rect line of demarcation on any other occasion. In the United States 
public opinion offers sufficient security, however, against any such 
transgression. From a political stand-point it is a more important 
fact that so far no effective means have been found for suppressing 
polygamy by legislation. The final reason why aU penal laws have 
remained substantiaUy ineffective is perhaps the unanimity of passive 
resistance which the Mormons oppose to them. Neither accusers 
nor witnesses can be found, and there is therefore no opportunity to 
apply the law. The latest penal act (that of March 22, 1882 ; the so- 
caUed Edmunds biU) punishes polygamy in the territories and in 
other places under the exclusive jurisdiction of congress with a fine 
not exceeding |oOO and imprisonment for not more than five years, 
and also deprives a polygamist of the franchise and of the right of 
oocapying any public office. 



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228 OONSTITUTIONAL LAW OF THE UNITED Sa?ATES. 

and separation of church and state exist throughout the 
Union, but not as an effect of the constitution. The lat- 
ter guaranties this only so far as the federal government 
is concerned. The separation of church and state is 
manifestly not to be understood as implying that the 
churches can do and not do what they please. As cor- 
porations, they are subject like other corporations to the 
legislative power of the states, especially as to their 
property. They are also subject to the police power, and 
they cannot any more than individuals escape from the 
laws of the state prohibiting and punishing violations of 
public morals by appealing to their religious convictions.^ 
§ 75. Fbeedom of Speech and of the Press. The 
general observations in the last paragraph apply here 
also. Freedom of speech and of the press are guarantied 
by the constitution, only so far as the federal government 
is concerned ; but they are also guarantied by all the 
state constitutions.' It is to be observed that congress is 

1 On the ground that the Christian religion was always acknowl- 
edged by the oommon law, and further, that it is the prevailing re- 
ligion of the United States, the power to punish " blasphemies " has 
been claimed. The relations of church and state wiU be more fully 
discussed in the chapter on the public law of the several states. 

2 The provisions in point are coUected by Oooley, Constitutional 
Limitations, 414-417. Hammond, I., ^> § 67, says, nevertheless, in 
reference to United States vs. Hall, 13 Int. Rev. Record, 182: " The 
right of freedom of speech, and the right peaceably to assemble and 
other rights enumerated in the first eight amendments to the consti- 
tution, are thereby protected only against the legislation of congress 
and not against the legislation of the states. These rights, therefore, 
were not secured to the people of the United States until the four- 
teenth amendment to the constitution, because tiU then they might 
be impaired by state legislation ; but now they are not only secured 
from congressional interference, but by the amendment, from state 
interference also." He can refer here only to the clause in the first 
section of the fourteenth amendment, which prohibits the states from 
making or enforcing '* any law which shaU abridge the priyileges or 



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THB FEDEBAL OONSTrrUTION. 229 

forbidden to "abridge" the freedom of speech or of the 
press. They were therefore recognized as existing rights. 
Hence it has been argued that the correct interpretation 
of the words must be found in the common law. In the 
opinion of the most prominent English jurists, however, the 
common-law freedom of the press is in substance merely 
freedom from a censorship, while in the United States the 
idea has always been given in fact and in law a far wider 
range. Cooley defines it as meaning that everything can 
be published which does not injure public morals or 
private reputation in a way punishable according to the 
principles of the common law. There is no responsibility 
for publication only in those cases which for various 
reasons are recognized as " privileged." ^ Even proof of 
the truth of the alleged libel does not always assure im- 
munity from punishment. In civil cases it is always suf- 
ficient; but if the complaint is a criminal one, the motive 
of publication must have been justifiable. In cases 
of the latter kind, the jury in many states decides not 
only questions of fact but also questions of law. In some 
states this principle extends to all actions for libel and 
slander. Juries always decide the questions of fact. 
That attacks against the government ought not to be pun- 
ished as libels has been generally recognized, since the 
"sedition law," passed during the presidency of John 
Adams, was condemned by public opinion with great 
decision and bitterness as unconstitutional. Even attacks 
upon the form of the state cannot be punishable as long 

immuDities of citizens of the United States." In my opinion this 
clause cannot be given so comprehensive an interpretation. Com- 
pare § 82. See, also, U, 8, vs. Cruikshank, 92 U. S., 542. 

1 See Cooley, Conatitutiondl Limitations, 425, 426 ; and Principles, 
275 et seq. A distinction must be drawn between cases of conditional 
and unconditional privilege. 



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280 CONSTITUTIONAL LAW OF THE UNITED STATES. 

as the ebange is sought in a oonstitutional way. In case 
of plans for the violent subversion of the government or 
the state, seditious publications can, however, be produced 
before the criminal judge as part of the res geatm. 

§ 76. The Right to Assemble and to PETrrioN. These 
rights are likewise guarantied in all the state constitu- 
tions. In them, as well as in the federal constitution, the 
former right is subject only to the condition that the 
people assemble "peaceably." Public authority can, 
therefore, interfere with a public meeting under no cir- 
cumstances, unless a violation of law has become an ac- 
complished fact. This right has never been in danger in 
the United States. The right of petition, on the con- 
trary, during many years, occasioned the most heated 
contests in congress. This aroused much of the opposi- 
tion of the free states to the steady, reckless and domi- 
neering advance of the slave-holding interests. 

§ 77. " The Right of the People to Keep and Bear 
Arms shall not be infringed" (second amendment) ; because 
a well-regulated militia is necessary "to the security of a 
free state. It has therefore been argued that the oonsti- 
tutional provision refers only to arms necessary or suit- 
able for the equipment of militia; although it must not 
be inferred from this that the right is restricted to those 
citizens who belong to the militia. As to whether or no 
the bearing of other arms can be forbidden, judicial de- 
cisions are far apart. It is, however, generally admitted 
that the secret carrying of arms can be prohibited. 

§ 78. Slavery is prohibited throughout the entire do- 
main of the Union by the thirteenth amendment. So, 
too, is " involuntary servitude," except as a punishment 
for crime, after due conviction.' 

1 1 pass over all other provisioiia relating to alaveiy, as tiiey hs?e 
now only an historic interest. 



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THE FBDEKAL CONSTITUTION. 281 

§ 79. Contracts.* No state shall pass any " law impair- 
ing the obligation of contracts " (art. L, sec. 10, § 1). 
This provision, unlike those in the first two amendments, 
relates wholly to the states. It does not follow, how- 
ever, that congress may pass such laws. Here, as in all 
cases, the principle obtains that it has only the powers 
which are granted it by the constitution. The claim of 
an express grant of power to pass such laws can scarcely 
be made. Unquestionably, congress can as little impair 
the obligation of contracts as a state. If the federal 
government wishes, however, to violate any of its con- 
tracts, there will often be practically no legal remedy for 
this; for the right of suit against the United States 
exists only so far as they establish it by law. But as to 
claims for money under such contracts, the right to sue 
is granted. The court of claims has jurisdiction of all 
claims founded on a federal law, upon an order of an ex- 
ecutive department or upon a contract, express or implied, 
with the government of the United States,- and also of 
all claims referred to it for decision by either house of 
congress. But the obligations incurred under contracts 
are not always of such a kind that in case of non-per- 
formance the injured party can give bis suit the form of 
a claim for money, or that damages in money can atone 
for his real damages. The proceedings under this consti- 
tutional provision in the federal and state courts furnish a 
mass of proofs of this. If these are studied more closely 
the student is inclined to regard it as, on the whole, a 
matter of good fortune that the prohibition is not ex- 
pressly extended to the United States. If it had been, 
the labyrinth of judicial decisions, through which it is 
scarcely possible to thread one's way now, would probably 
be still more extensive and confusing. This apparently 

I J. P. Bishop, Contracts, St Louis, 1878. 



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OONSTITnnOKAL ULW OF THE UNITED STATES. 

simple clause, which was hardly mentioned in the debates 
over the adoption of the constitution, has proved to be 
one of the most important, has given occasion to as many 
legal controversies, perhaps, as all the rest of the consti- 
tution put together, and has laid the heaviest tasks upon 
judicial brains. Becoming complete master of the whole 
matter involved would be the task of a life-time, and the 
trouble taken would be ill repaid ; for the decisions vary 
in manifold ways, and cut across each other at every im- 
aginable angle. Indeed, a number of recent decisions let 
it seem quite possible that the very ground lines of con- 
stitutional law on this question, once supposed to be irrev- 
ocably and firmly drawn, will by and by be twisted into 
a radically different outline. I must therefore renounce 
the attempt to state, even in the most general way, what 
the actual constitutional law on this point is. I do so 
with the less hesitation because most of the questions in- 
volved scarcely come within my idea of the public law, 
although they form an important part of constitutional 
lawj and are therefore, as a rule, treated in great detail 
in American books. I shall simply note as briefly as may 
be those points which are really of especial importance 
from the stand-point of public law. 

As the constitution speaks simply of contracts, all 
kinds of contracts come under the provision — executed 
and executory, express and implied. The word covers, in 
fact, not only contracts between private persons, but also 
those between a state and private persons. On both these 
fundamental principles there is no difference of opinion. 
This is a scanty gain, however, for the importance in 
public law of these principles depends wholly upon the 
definition of the word " contract." Giving the word the 
narrowest possible meaning would have resulted in no 
difllculty worth notice. But the supreme court has given 



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THE FEDERAL CONSTITUTION. 

the word a scope far beyond what is understood by it in 
ordinary speech. It is generally admitted that laws are 
not contracts; but contracts may be entered into by the 
state under the form of laws, and legislative donations to 
private persons, which come under the head of "grants," 
are contracts within the meaning of the constitution.^ 
Upon these two statements rests the whole significance in 
public law of this clause of the constitution. Their con- 
sequences reach to the very root of the whole body of 
constitutional law and involve the question of the polit- 
ical character of the constituent members of the Union. 
The legislative power of the states within their constitu- 
tional sphere is limited by this interpretation of the con- 
tract<5lause in a way which, in the opinion of many, 
is absolutely incompatible with the existence of the 
autonomy of the states. AU acts incorporating private 
corporations by general or special laws and all charters 
are contracts. In every such contract the state surrenders 
pro tcmto its legislative will.^ A legislature binds all 
future legislatures as to the entire extent of the " contract." 
The provisions which are not in the proper sense of the 
word essential to the accompUshment of the object, but 
serve only to advance it, cannot be changed by the state 
alone any more than the essential provisions can be; for 
the constitution forbids not only the annulment, but every 
impairment of contracts.' The state retains only the 

1 Fletcher t». Peck, Cranch, VI., 87, 137; Providence Bank vs, Bil- 
lings, Peters, IV., 500. 

2 Charters of mnnicipal corporations are not *' contracts" (Dart- 
nu>iUh College vs. Woodward, Wheaton, IV., 659, 094). Privileges 
granted them in the charter, such, for instance, as a ferry franchise, 
can be again withdrawn by the legislature. These privileges would 
be inviolable if granted to a private corporation. East Hartford vs. 
Bridge Co., Howard, X., 510. 

» Ptantenf Bank vs. Sharp, Howard, VI., 827. If, for instance, a 
state in incorporating a bank has agreed not to tax it beyond a oer- 



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234 ooNSTrrunoNAL law of ths unitbd states. 

powers which come from the right of eminent domain.* 
The "contract" must always be strictly construed in 
favor of the state. No public obligations are to be in- 
ferred ; the courts recognize only those which are clearly 
expressed. Some of the state courts — especially in Ohio , 
during the fifties — made repeated and energetic efforts 
to overthrow the principles which led to consequences of 
such enormous practical significance. The result, how- ^ 
ever, was the very opposite of that striven for. The 
federal supreme court kept steadily on for a long time 
building upon the foundations already laid, especially on 
those outlined in the Dartmouth College decision, the 
leading case for the interpretation of the contract-clause.- 
Nevertheless, the states have found a way to break the 
chains which this put upon their legislative freedom of 
action. By general legal provisions, or in the very con- 
tracts concluded by law, they reserve the right to modify 
or repeal the obligations entered into. Against this the 
federal supreme court has had nothing to say, for the 
reservation is a part of the contract, and therefore a 
modification or repeal does not impair the obligation of 

tain amount, the state is bound forever. One legislature can thus 
limit the right of taxation for aU future legislatures. It binds, in 
fact, the people themselves, for even a change in the constitution 
of the state cannot repeal the contract-obligations entered into by an 
earlier legislature. See Dodge vs. Woolsey, Howard, XVIII., 881; 
Mechanics <fc Traders^ Batik v«. De Bolt, Ibid., 880; Same vs. TTiomcu, 
Ibid., 384; SkeUy vs. The Jefferson BanJe, Black, I., 486; The Bing- 
hamton Bridge^ Wallace, HI., 51. In this last case Justice Qrier, 
who with Chief-justice Chase and Justice Field dissented from the 
decision, said: " Although an act of incorporation may be called a 
contract, the rules of construction applied to it are admitted to be 
the reverse of those applied to other contracts." Ibid,, 83. 

1 Bridge Co. vs. Dix, Howard, VI., 607. See Cooley, Const. Lim- 
itations, 628-571. 

2 Dartmouth College vs. Woodward, Wheaton, IV., 61(^716. De- 
cided in 1819. 



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THE FEDERAL OONSTITUTION. S85 

the contract. This has not, however, laid the storm 
against the principles of the Dartmouth College decision. 
It has raged more violently than before and with some 
results.^ Those principles have unquestionably already 
lost the character of axiomatic truths which they had 
assumed in the minds of most jurists. The federal 
supreme court has itself begun to undermine them by its 
reasoning in the Granger oases,' although Chief-justice 
Waite does not directly attack either the decision in the 
Dartmouth College case or its foundation. The more 
recent decision in the Spring Yalley Water "Works case 
tends in the same way. These two decisions rest in sub- 
stance upon the fundamental principle that in states which 
reserve the right of amending and modifying charters, 
stockholders in corporations must risk their investment 
upon the hope that future legislatures will not modify the 
legal conditions under which the former legislature invited 
the investment. But there is no legal remedy if this ex- 
pectation is not fulfilled. If the rigid following-out of the 
principles of the Dartmouth College case to their ultimate 
consequences leads to results of the highest significance, 
politically and from the stand-point of public law, on the 
other hand this recent principle might produce economic 
and political results which make its unconditional accept- 
ance impossible. Probably, therefore, a compromise be- 
tween the two will be sought and finally found, — a 
compromise which will be in full accord with this clause 
of the constitution and will avoid the imminent perils of 
each of the present doctrines. However this may be, the 
constitutional law as to the obligation of contracts made 

1 See eepecially Shirley, The Dartmatith CoUege Cauaes and the 
Supreme Court of the United States, 1879. 

2 94 U. S., lia-187. 



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236 OONSTITUnONAL ULW OF THB TTNTTED 8TATB8. 

by legislation is still in embryo, despite the numberless 
judicial decisions upon it.^ 

EXPRESS OBLIGATIONS. 

§ 80. GUAEANTY OP A KePTJBLICAN FoRM OF GoVEBN- 

MENT. " The United States shall guaranty to every state 
in the Union a republican form of government" (art. 
IV., sec. 4). This is the only constitutional provision 
v^rhich lays an obligation upon the " United States " with- 
out saying anything as to who shall determine whether ac- 
tion of any kind is needed for the fulfillment of the duty 
and what means shall or must be used. Though the 
framers of the constitution certainly attached great im- 
portance to this clause, they do not seem to have put 
these questions to themselves or at least to have been 
thoroughly clear in their own minds as to the possible sig- 
nificance of the provision. Manifestly they set out with 
the thought that the Union would stand on feet of clay 
if its constituent members had not homogeneous political 
institutions, and that therefore, so far as might be, every 
possibility of the growth of monarchical tendencies by 
reason of internal conflicts or external influences should 
be cut off. The history of the Union since the rebellion 
of the colonies against the mother country presented 
many reasons for the fear lest under certain circum- 
stances tendencies of that kind might be aroused here 
and there, if a curb were not provided in the constitution, 
that is, if the entire Union were not explicitly and uncon- 
ditionally pledged to use all its powers to suppress these 

1 The most concise compilation of all the important decisioziB of 
both federal and state courts under this clause is to be found in the 
second edition (1884) of Desty's Constitution of the United States, 
pp. 124r-186 and 804r^ll. 



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THB FKDEEAL CONSTITUTION. 237 

tendencies wherever and however they might appear. 
For this is and should be implied in this clause. It not 
only promises the states that the Union will interpose 
with all its might on their behalf, if internal or external 
enemies threaten or overthrow their republican form of 
government, but it absolutely forbids them to adopt any 
other form of government under any conditions, or for 
any reasons whatever. The United States give a pledge to 
themselves and to their constituent members that they will ^^ 
always remain a republic and, indeed, a federative repub- 
lic. Within the limits of the republican idea, the federal 
and state constitutions can be subjected in constitutional 
methods to every imaginable modification, but the least 
transgression of these limits on the part of the Union is, 
ipso facto^ a legal dissolution of the Union, unless done 
with the consent of every single state. And even in the 
latter case legally a new Union will have taken the place 
of the old one. That is what the framers of the consti- 
tution had in view, and it is certainly of more than theoret- 
ical interest and importance. Up to the present time, 
however, its immediate practical significance has come 
wholly from another source, which certainly lies within 
it, but of which the framers of the constitution had either 
no idea at all or only an inkling of an idea. 

While at the time of the adoption of the constitution it 
did not seem utterly impossible that under certain cir- 
cumstances monarchical tendencies might appear in one 
or more states, still this was highly improbable. The 
Union in fact has never had occasion to interpose on this 
account. And yet the provision has been brought into 
play, through the prohibition implied in it against a state's 
assuming any other than a republican form of govern- 
ment. 

As the United States must guarantee the states a re- 

^IVEKSITY 

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238 CONSTITUTIONAL LAW OF THE UNITED STATES. 

publican form of government, they mnst also be allowed 
to judge whether the government of any state is repub- 
lican, and as the United States can act only by means of 
the federal government, the latter must determine this. 
The only question is, to which of its departments the 
decisive judgment belongs. The supreme court has an- 
swered this question by saying that congress must decide, 
and that the courts and the president must recognize its 
decision as binding.* As the question is not legal, but 
purely political, this view certainly cannot be disputed. 
But is it not practically quite the same thing, no matter 
to whom the decision belongs, for could there ever be a 
difference of opinion as to whether or no a form of gov- 
ernment is republican ? At first glance it might appear 
that this was barely possible. More closely examined, it 
becomes evident that the matter is by no means always 
and necessarily quite so simple. For it is not the Amer- 
ican idea that every form of non-monarchical government 
can be recognized as republican in the sense of this con- 
stitutional provision. There has never been an authori- 
tative definition of the word "republican," but neverthe- 
less attempts have been made to stake off, in a positive as 
well as a negative way, the approximate limits of the 
idea. Every form of government essentially the same as 
the governments of the states at the time of the adop- 
tion of the constitution must be recognized as republican, 
for it is self-evident that these were and remain republi- 
can in the sense of the constitution. Hence it has been 
argued that the system adopted must coincide with these 
original forms, at least to the extent of entrusting the 
legislative, executive and judicial powers to different 
organs.* Indeed a very competent authority has drawn 

1 Luther vs. Borden, Howard, "VTL, 43. 
sPaschal, The ConsHtutian, etc., 248. 



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THE FEDEBAL OONSTTTUTION. 239 

a distinction in principle between the democratic and re- 
publican form of government.^ These assertions open a 
wide field for discussion, but it must be admitted that 
oligarchies and aristocracies do not come within the con- 
stitutional provision. No fixed line, however, can be 
drawn between an aristocracy and a representative re- 
public in which but a small fraction of the people have 
full political rights. But no matter how much theories 
may differ, in practice public opinion is unanimous in 
deciding that even non-monarchical state-forms may also * 
be non-republican. This may become of the greatest 
practical importance, for congress may get into such a 
position that it can, or even that it must, decide a con- 
crete case. For instance, the question may be raised 
within a state which of two constitutions and which of 
two governments is the legal one. "While the principle 
is generally understood that such a question should be 
decided by the state itself, nevertheless the federal gov- 
ernment may be obliged to take sides with one or the 
other. And if it does so, its decision is absolutely final. 
In such cases, however, it is easily possible that consider- 
ations arising out of the question here discussed may be, 
or have to be, taken into account. The accepted inter- 
pretation of the word " republican " has given congress 
power to determine not only whether the form of gov- 
ernment of the states is republican, but also whether the 
states are in substance republics. The exercise of this 
right, too, may, under certain circumstances, become an 
imperious duty. The judgment of history will certainly 
be that this was the case after the overthrow of the re- 
bellion, even although in my opinion it will undoubtedly 
not exonerate congress from the charge of having greatly 
abused this power in its reconstruction policy. After 
V 1 Ckwiey, Principles, 194. 



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240 CONSTITUTIONAL LAW OF THE UNITED STATES. 

the seceded states had been forced back into the Union 
by the sword and the sword had destroyed the true root 
of the rebellion — slavery, — congress could not and should 
not have permitted the rebel states to become again full 
members of the Union until they had adopted constitutions 
which corresponded in all respects with the new condi- 
tion of aflfairs ; which were in harmony with the views of 
the victorious north ; and which were republican in sub- 
stance as well as form. But demands were made upon 
the southern states which went far beyond anything re- 
quired by the most rigid interpretation of a republican 
form of government in the sense of the constitution.* 

I When the question was discussed in the senate as to whether the 
state of Louisiana, on the basis of its constitution of 1864, should be rec- 
ognized as again endowed with full constitutional and legal rights, 
Charles Sumner said, February 24, 1865, in reply to a question by Hen- 
derson : " I answer at once, as a constitutional lawyer, that at the pres- 
ent time, under the words of the constitution of the United States 
declaring that the United States shaU guarantee to every state a repub- 
lican form of government, it is the bounden duty of the United 
States, by act of congress, to guarantee complete freedom to every 
citizen, and immunity from all oppression and absolute equality be- 
fore the law(l). No government that does not guarantee these 
things can be recognized as republican in form according to the 
theory of the constitution of the United States, if the United States 
are called upon to enforce the constitutional guarantee." (Congress. 
Globe, 2d Sess., 38th Ck)ngress, 1067.) Congress adopted this view, for 
in the reconstruction act of March 2, 1867, it made the re-admiseion 
of the rebel states to the right of representation in congress depend- 
ent upon, inter alia, the conditions that their new constitutions 
should be " framed by a convention of delegates elected by the male 
citizens of said state, twenty-one years old and upwaixi, of whatever 
race, color, or previous condition," and that ** such constitution shall 
provide that the elective franchise shall be enjoyed by aU such per- 
sons as have the qualifications herein stated for electors of dele- 
gates." (Stat at Large, XIV., 429.) Wherever congress oould do 
so, it interpreted this constitutional provision in the sense given it by 
Sumner. The act of February 9, 1867, for the admission of Nebraska 



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THE FEDERAX OONSTnunOlf. 241 

It became evident during the reconstruction period that 
this clause of the constitution was a weapon of terrible 
weight and keenest edge. That the weapon was not al- 
ways rightly used at a time when the country was con- 
fronted, constitutionally and practically, with an amazing 
labyrinth of extraordinary difficulties, is certainly no 
proof that the constitution was wrong in creating the 
weapon. Whether it will ever be used again to such an 
extent it is impossible to say definitely ; but this is cer- 
tainly improbable. An attempt against the republican 
form of a state has never yet been made, and it is almost 
inconceivable that such an attempt ever will be; for at 
the present time in each state the form and substance of 
the government are in harmony, and moreover all the 
state governments are becoming more and more alike in 
both form and substance. The civil war not only hast- 
ened the political consolidation of the Union in law and 
m fact, but also greatly promoted the nationalization of 
the people by making all the constituent parts of the 
Union, from ocean to ocean and from the great lakes 
to the Gulf of Mexico, actually and legally so homo- 
geneous in their political and social structure that further 

proTided: "That this shall not take effect except upon the funda- 
mental condition that within the state of Nebraska tliere shall be no 
denial of the elective franchise or of any other riglit to any person 
by reason of race or color, except Indians not taxed," and that 
the legislature should by a solemn public act adopt tliis condition. 
(Tbid., XrV., 892.) The jftfteenth amendment as originnlly proposed 
shows that congress sought to make this new and radical iiiterpreta- 
tioii of the expression obligatory upon aU the states, but it was not 
poBsible to force it upon the loyal states as a federal law. This, how- 
ever, does not alter the fact, that for pan of the states this clause 
was construed in a way which the rest of the states wciuld not per- 
mit in respect to themselves,— in other words, the fundamental prin- 
ciple of constitutional law, the absolute equality of all the states, 
was OYerthroWn in a n:iatter of cardinal imx>ortance by federal laws. 
16 



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242 00K8TITUTI0NAL LAW OF THE UNITED STATES. 

development mtcst go steadily on in the same direction 
until that degree of homogeneity is reached which, under 
the existing relations, is generally possible, justifiable 
and desirable. With the increasing density of the popu- 
lation and the growth of commerce the importance of 
this provision of the constitution diminishes from year to 
year in both ways, that is, so far as the duty it imposes 
upon the United States is concerned as well as in regard 
to the powers it grants congress. The guaranty offered 
by the actual condition of affairs is becoming so strong 
that each day there is less need of an express guaranty 
in the federal constitution. 

§ 81. State Comity. A study of details would show 
that the public laws of the individual states still present a 
variegated picture. Probably this will always be so. 
And though the differences are by no means all insignifi- 
cant, none of them are of such a radical nature that an 
American, who moves from one state into another, cannot 
at once feel fully and entirely at home in this respect. 
On the other hand nothing makes him more conscious 
at every step that he lives, not in a national state, but in 
a federative republic, than the myriad legal relations of 
the individual in the different states. Even these, how-, 
ever, are unmistakably alike in type, and all the essential 
legal principles as well as legal institutions are common 
to all the states. But when the law relating to individu- 
als is applied, the decision does not depend, in the great 
majority of cases, directly upon general legal principles, 
but rather on how these principles are stated in the 
specific provisions of the state laws. As a matter of 
course, although the relations between the citizens of the 
different states are so many-sided and so close, the state 
laws differ very much more than they would, if the Union 
were a single national state. So far as these relations are 



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THif FKDEBAL OONBTITUTION. 243 

legal in their nature, however, they are regulated by the 
general principles and rules of international law as to in- 
dividuals, unless, indeed, the federal constitution provides 
otherwise. It does so provide in some important respects, 
but by no means sufficiently so to make the legal relations 
correspond with the actual facts as far as might be de- 
sirable.^ The nationalization of the Union in this respect 
is never to be expected. Even if it were possible, there 
are very many and very important objections to it. The 
immense extent of the territory, the great diversity of 
natural relations and the consequent diversity of customs 
and opinions, as well as of social and economic conditions, 
would count against it. But, nevertheless, many and 
great disadvantages result from the fact that every state 
has its own laws. And in certain directions these disad- 
vantages will increase and become more serious, the more 
in all other respects actual nationalization progresses.^ 
It is 80 much the more important and praiseworthy that 
the federal constitution has given parts of the legal system 
a national character or at least has deprived them of the 
purely international character which other parts bear. 

The next clause to be considered provides that " full 
faith and credit shall be given in each state to the public 
acts, records and judicial proceedings of every other 
state," and authorizes congress "by general laws" to 
'' prescribe the manner in which such acts, records and 
proceedings shall be proved, and the effect thereof" (art. 
IV., sec. 1). The manner of proof is purely formal and 

I This comes most clearly to light in New York city, where the 
cities and towns on the right bank of the Hudson, in the state of New 
Jersey, are eoonomicaUy and socially simply parts or suburbs of New 
York. 

s For example, much has recently been said as to what a great bless- 
ing a national divorce law would be. 



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244 oONSTmrnoNAL law of ths uhitbd states. 

of no interest here. The only question of importance is 
the meaning of ^^ full faith and credit," that is, what act- 
ual effect the proceedings in one state shall have in an- 
other. This question has always been answered in one 
way. The constitution, it is said, never contemplated 
ordering or permitting the jurisdiction of one state to 
extend into the domain of other states; it intended only 
that every state should be in duty bound to recognize 
without reservation what other states have done in the 
exercise of their lawful jurisdiction. A judicial decision 
rendered in another state will not, for example, be en- 
forced if the defendant can prove that the court had no 
jurisdiction,^ but the correctness of the judgment per h 
cannot be called into question. If the defendant has no 
further defense under the laws of the state in which the 
judgment was rendered, it must be enforced in every 
other state. If, however, the laws of the former state 
vouchsafe him any kind of protection whatever against 
the judgment, he may avail himself of this protection in 
every other state, but of this protection alone. If, how- 
ever, the judgment is barred by lapse of time under the 
laws of the state where it is sought to be enforced, the 
defendant may claim the benefit of these laws, but no 
state can pass a statute of limitation which makes it im- 
possible to enforce judgments rendered in other states. 
The judicial proceedings of which the constitution speaks 
in this clause are only civil cases. In criminal cases an- 
other provision prevails. 

1 This is also true when the necessary formalities, such as due serv- 
ice of process, were not observed, provided the judgment is tn jper- 
90fMim, Service by publication is sufficient, however, to wammt 
a judgment in rem if the property concerned is within the jurisdic- 
tion of the court. On the other hand, no one is bound to pay any 
attention to a personal summons served in one state directing him to 
appear before a court in another state. 



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THE FEDERAL CONSTITUTION. 245 

§ 82. Extradition of Fugitive Criminals. " A person 
charged in any state with treason, felony or other crime, 
who shall flee from justice and be found in another state, 
shall, on demand of the executive authority of the state 
from which he fled, be delivered up, to be removed to the 
state having jurisdiction of the crime" (art. IV., sec. 2, 
§ 2). The duty of extradition is absolute. If a requisi- 
tion is made, it must be obeyed, provided the three follow- 
ing conditions are fulfilled : 1. The demand must be in 
the required form; 2, the charge must have been made 
in the manner prescribed by law before a court of com- 
petent jurisdiction; 3, the defendant must have saved 
himself from criminal prosecution by flight, that is, he 
must have departed from the state requiring his extradi- 
tion. He must, therefore, have actually been in that 
state. If the crime were carried on from another state, 
as in the case of a conspiracy, the constitutional provision 
does not apply. The executive department of the state 
to which the requisition is directed cannot refuse extra- 
dition on the ground that the act with which the defend- 
ant is charged is not a crime, according to the laws of 
that state, but only a misdemeanor or even not an act 
punishable at all. A crime in the sense of this constitu- 
tional provision is whatever the laws of the state which 
makes a demand for extradition declare to be a crime.' 
This im|K)rtant doctrine of the supreme court of the 
United States has, however, been by no means uncondi- 
tionally recognized in practice. Extradition has often 
been refused. This has led to wearisome and serious 
conflicts between states. The most violent and most 
threatening of these were caused by the slavery question. 
Certain acts, such, for example, as inducing slaves to run 
away, which were high crimes under the codes of slave 

1 KerUiusky vb. Denniaon, Howard, XXIV., 09. 



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246 CX>NSTITUTIONAL LAW OF THE UNITED STATES. 

states, seemed to the more earnest opponents of slavery 
in the free states to deserve reward rather than punish- 
ment. Different governors, such as W. H. Seward, of 
New York, afterwards senator and secretary of state, re- 
fused to obey a requisition in such a case, because they 
could not consider as crimes in the sense of the constitu- 
tion what their laws and the moral judgment of almost 
the whole civilized world did not consider a crime. In 
these peculiar cases, it may be readily admitted that the 
refusal was morally and politically justified ; but the re- 
jection of the doctrine laid down by the federal supreme 
court might have been fraught with the most serious re- 
sults. Now that all the states in all matters profess the 
same moral principles, no considerations of principle 
oppose the unconditional recognition of this doctrine, al- 
though in one or another case the question may be raised 
as to whether the law of the case is also the justice of it 
But if a governor sees fit in his official conduct to deter- 
mine this question subjectively against the demand, the 
state issuing the requisition has only the choice of submit- 
ting to the unconstitutional refusal under protest or of 
repaying like with like, and in its turn retaliating in kind 
and so committing the same unconstitutional act itself. 
For the supreme court has declared that it cannot compel 
the performance of the extradition duty.* This constitu- 
tional provision, certainly one of the most important, — 
an indispensable one, in fact, — cannot be quite sufficient, 
or else the act of February 12, 1793, which provides the 
means of executing it, must have omissions that should 
be supplied.* 

^Kentucky V8, Dennison, Howard, XXIV., 107, 108. 

2 The next clause in the constitution treats of the duty of deliyering 
up persons held to service or labor in any state. In order not to 
use the objectionable -word slaves, in the constitution, its framers 



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THE FEBEBAL OONSTITTJTION. 247 

§ 83. Legal Equality. " The citizens of each state shall 
be entitled to all the privileges and immunities of citizens 
in the several states " (art. IV., sec. 2, § 1).^ The great 
importance of this provision is evident at a glance. To it 
is chiefly due the fact that step by step with the pro- 
gressive development of the United States the practical 
nationalization of the people proceeds. As far as the 
constitution does not expressly prescribe otherwise, the 
states have a perfect autonomy in all matters not made 
federal affairs by the federal constitution, but they can- 
not have two kinds of laws and two kinds of rights, one 
for their own citizens and one for the citizens of other 
states.* He who is a citizen anywhere in the Union can 
nowhere within its domain be an alien. If he crosses the 
boundary into another state he enters its legal jurisdic- 
tion as the possessor of equal rights with its own citizens. 
He is not simply tolerated ; his rights are not given him 
as a favor; he has not to be contented with this or that 
being assured him; but wherever he sets foot he is ipso 
facto and ipso Jure in the full enjoyment of all the privi- 
leges and immunities of citizenship. What are these 
privileges and immunities which belong to " citizens in 
the several states" as such? And does this mean all 
kinds of citizens or only a particular kind ? Judicial de- 

Availed themseWes of this circumlocution. In adopting this provis- 
ion, indeed, they did not consider slaves exclusively, but apprentices 
as welL It obtained its historic significance, however, solely through 
slavery, and with the abolition of that it became purposeless. 

1 The corresponding provision of the articles of confederation ex- 
pressly excepts " paupers, vagabonds and fugitives from justice." 

2 " Its sole purpose was to declare to the several states that what- 
ever those rights, as you grant or establish them to your own citizens, 
or as you limit and qualify or impose restrictions on their exercise, 
the same, neither more nor less, shaU be the measure of the rights of 
citizens of other states within your jurisdiction." The Slaughter 
House Cases, Wallace, XVI., 77. 



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248 ooN8nTirnoNA.L law of thb united states. 

cisions have asserted that the constitution means only 
citizens of the United States, and that the provision there- 
fore has no application to non-naturalized immigrants to 
whom one state has granted its special state citizenship,* 
or to free colored people, because the latter could never 
be citizens of the United States.* The fourteenth amend- 
ment not only permanently set aside the latter doctrine, 
but also did away with the chief difficulties arising from 
the very obscure relation between the two kinds of citi- 
zenship, state and national. The only possible doubt now 
is in regard to non-naturalized citizens,' for "all persons 
born or naturalized in the United States and subject to 
the jurisdiction thereof* are citizens of the United States 
and of the state wherein they reside." 

The special right of state citizenship is not granted cit- 
izens of the United States who immigrate. They acquire 
it eo ipso by theirsettlement in a state, and their settle- 
ment cannot be prevented. On the other hand, they lose 
their 8pe3ial state-citizenship by emigrating into another 
state or territory. The free right of emigration is not 
only as a matter of fact absolutely unlimited in the 
United States, but it is unquestionably one of the privi- 

1 Davis VH, Pierse, 7 Minn., 13, quoted by Bump, 290. 

« Dred Scott vs. Sanford, Howard, XIV., 808. 

• I cannot understand how Cooley (Principles, 244) can say : " It ia 
impossible to conceive of such a status as citizenship of a state unoon- 
nected with citizenship of the United States." Even the fourteenth 
amendment has evidently in no way deprived the states of the right 
of granting their particular citizenship wholly in their own discretion. 
It simply restates what was already a recognized principle {Pierre Oas- 
sies vs. Jean Qassies Ballou, Peters, YI., 761 ; 1833), that no state can 
withhold its citizenship from citizens of the United States, and that 
the latter obtain this state-citizenship by the mere fact of domicile. 

< This clause excludes Indians who live under the tribal system, for 
even if the tribe be within a state, the jurisdiction of the United 
States is only a limited and conditional one. 



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THE FEDERAL C0JN8TITDT10N. 249 

leges which the fourth article of the constitution guaran- 
ties all citizens. The state-citizenship of the citizen of 
the United States goes with him as long as he merely 
changes his residence, but retains his domicile. This 
makes it possible to determine what kinds of rights are 
not intended by the " privileges and immunities" spoken 
of in article four^ and this again makes it easier to an- 
swer the question as to what kind of rights are meant 
thereby. Political rights, such as the franchise, the right 
to hold office, etc., are never an unconditional result of 
citizenship. This is evident from the fact that they are 
always withheld from minors, and almost without excep- 
tion from women. The fourth article speaks only of priv- 
ileges and immunities which are conditioned upon the 
right of citizenship. Political rights are consequently 
excluded. These are always and in all places inseparably 
bound up with the legal domicile. All rights appertain- 
ing to any citizens of the state are not guarantied to 
the citizens of all the states, but only those rights which 
the citizens of the particular state have under the same 
circumstances. The legislation of a state can make no 
distinction in favor of its citizens, but it goes without 
saying that the constitution did not intend to bind a state 
to give special privileges to the citizens of other states. 
And this would be the case if these latter could claim 
political rights. The law has never defined what kind of 
privileges and immunities belong to the citizens of the 
several states as such. Even the judicial decisions do not 
answer this question exhaustively. Justice Washington 
sought to enumerate them,* and lays special stress upon 
protection by the government; the enjoyment of life and 

^Corfield vs. Coryell, 4 Wash. C. C, 880, 881. He takes as his 
predicate that only privileges and immunities are intended which 
must be regarded as " fundamental.** 



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250 OONSTITUTIONAL LAW OF THE UNITED STATES. 

liberty, with the right to acquire and possess property of 
every kind, and to pursue and obtain happiness and 
safety, subject, nevertheless, to such restraints as the 
government may justly prescribe for the general good of 
the whole; the right of a citizen of one state to pass 
through or to reside in any other state for purposes of 
trade, agriculture, professional pursuits, or otherwise; to 
claim the benefit of the writ of habeas corpu%; to insti- 
tute and maintain actions of any kind in the courts of the 
state ; to take, hold and dispose of property, either real 
or personal ; an exemption from higher taxes or imposi- 
tions than are paid by the other citizens of the state; the 
exercise of the elective franchise as regulated and estab- 
lished by the laws or constitution of the state in which it 
is to be exercised. It has never been disputed that all 
this falls within the limits of article four. In both legisla- 
tures and courts, however, the opinion of Judge Curtis 
has always prevailed.^ He held that it was not possible 
to establish pertinently and exhaustively a priori what 
an immunity or a privilege in the sense of this clause 
really was, and that it was therefore safer to decide the 
question as presented in each case. This is of course true, 
too, of " the privileges or immunities of citizens of the 
United States," which, according to the fourteenth amend- 
ment, no state can abridge by law. Cooley {Principles^ 
247) expresses the indisputable view that the adoption of 
this provision is to be regarded as superfluous, inasmuch 
as the states manifestly nave .• ,v che right to do this be- 
fore. From the adoption of the provision it is evident, 
however, that the privileges and immunities of citizens of 
the United States and of the states do not correspond 
entirely, even if they coincide in part. The former must 
unquestionably be deduced from the federal constitution. 
1 Conner vs. Elliot, Howard, XVIIL, 598. 



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THE FEDERAL 00N8TITUTI0N. 251 

The federal sapreme court cite some examples of them 
in the Slaughter House cases.^ It declares that as far as 
the jurisdiction of the federal government extends, such 
privileges and immunities also exist.' In the same case it 
decided, however, that so far as the privileges and immuni- 
ties of the citizens of states were concerned, their ^^ safety 
and protection " are incumbent on the states, and were 
not put, by the fourteenth amendment, under the " special 
care " of the federal government 

RIGHTS OF INDIVIDUAL AND THEIR SAFEGUARDS. 

§ 84. Dub Pbocess of Law and Equal Legal Peotbo- 
TioN. " No person shall be deprived of life, liberty or 
property without due process of law " (fifth amendment). 
The fourth, fifth, sixth, seventh and eighth amendments 
are, in a certain sense, only a more detailed statement 
and explanation of this principle, which the fourteenth 
amendment has also made obligatory on the states, and 
has enlarged for them, so that they cannot refuse to any 
person under their jurisdiction the equal protection of 
their laws. It must not be concluded from the fact that 
the latter provision was not also made expressly obliga- 
tory on the federal government that it can at pleasure 
and constitutionally violate this principle. So, too, the 
adoption of the first clause of the fourteenth amendment 
must not be interpreted as meaning that the principle 
contained in it first became binding upon the states, or 
upon a part of the states, when this amendment went 
into force. Except in the case of the slaves, and in part 

1 WaUace, XVL, 79, 80. For further examples Bee Cooley, Princi- 
ples, 24^-247. 

2 « We ventore to suggest some which owe their existence to the 
federal government, its national character, its constitution or its 
laws." 



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252 CONSTITUTIONAL LAW OF THE UNITED STATES. 

also of the free colored people, it was always a f undar 
mental principle of the constitution of every single state. 
But as it was deemed necessary to take care lest, in the 
former slave states, the colored people should be exposed 
to all kinds of oppression and wrong, it was also thought 

. necessary to guarantee them safety under the law, and 
also equality under the law, through the constitution of 
the United States. But although this is the real cause 

, of the origin of this part of the fourteenth amendment, 
yet the two clauses are by no means of significance only 
for the colored people of the former slave states. Some 
of the most important law-suits in which these clause 
have been involved have been fought out in the northern 
states, and principles of public law of the broadest kind, 
but with no relation whatever to the race-question, have 
been involved in them. However unnecessary it may 
seem at first glance, both clauses need, therefore, a some- 
what more detailed discussion. 

It is generally admitted that the words '* due process 
of law '' are to be undei^stood as a technical expression 
and as equivalent to the " law of the land " of magna 
charta. It is therefore said that this provision imposes a 
limitation not only on the courts and the executive, but 
also on the legislative power,* because at the foundation 
of the law of the land are certain principles; the due 
process of law is forsaken whenever these principles are 
violated ; and the fact that the violation occurs under the 
form of a legislative act will not give it legal force. But 
the law-giving power is simply forbidden to make arbi- 
trary injustice into justice under the form of law, for 
those principles comprehend only the most general doc- 
trines of the law, viz. : that no one shall be convicted 

1 Den^ Murray and Kayser vs. The Hdbokeny eto,. Company, How- 
ard, XVm., 276. 



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THS FEDBBAL OONSTrrUTION. ' 253 

anhcard; that the facts alleged must be examined into; 
and that a decision shall be made only after a legal trial 
of the facts in a court of competent jurisdiction.^ This 
leaves, therefore, the broadest scope to the legislative will. 
The words " due process of law," in the fifth and four- 
teenth' amendments, are in full accord with this funda- 
mental doctrine, but they do not say that the procedure 
must be the same under the federal constitution and the 
federal laws as under the state constitutions and state 
laws. As far as the fourteenth amendment is concerned, 
the states are perfectly free to give the " due process of 
law " whatever shape they please, as long as they do not 
violate these fundamental principles. Their own consti- 
tutions or laws have made binding upon them in sub- 
stance the obligations laid upon the federal government 
by the five amendments already mentioned, but they 
were not compelled to do this by the federal constitution, 
and can, so far as it is concerned, change this condition 
of affairs at any moment. The controversies in consti- 
tutional law that may arise out of this provision of the 
fourteenth amendment would probably never present any 
considerable difSculties, if it were always easy to define 
with certainty the meaning of the words, " deprive of 
property." It was long since decided that the corre- 
sponding provision of the fifth amendment, and conse- 
quently that the fourteenth, does not forbid every 
compulsory taking of property without the intervention 
of a court. The right of taxation absolutely excludes 
such an interpretation. Moreover, it has not been so 
much the direct as the indirect taking of property which 
has given rise to the chief differences of opinion. When, 
in what manner, and to what extent may a state regulate 
the management of private property? These are ques- 
1 Webster's Works, V., 487, 488. 



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254 CONSTITUTIONAL LAW OF THE UNriED STATES. 

tions which, partly in connection with the great question 
of the obligation of legislative contracts, and partly in 
connection with the question of the guaranty of equal 
legal protection, have repeatedly of late years occupied 
the courts, and have justly excited the utmost public in- 
terest. 

In the case already cited, Munn vs. Illinois, 94 U. S., 
118, the supreme court laid down the principle that 
" private property which is affected with a public interest 
ceases entirely to be juris privatL^^ If any person dedi- 
cates his property to a use in which the public has an 
interest, he grants the public an interest in this use, and 
must himself be subject thereto, so that he must be con- 
trolled, 60 far as this interest so created by him is con- 
cerned, by the common good of the public. As to certain 
kinds of property, this principle has for a long time had 
a restricted meaning in American jurisprudence. It has 
never been disputed, for instance, that common carriers 
had certain duties to the public, and that these could be 
regulated by law. The question is, however, whether 
the principle in its broad generality, as laid down in this 
case by the supreme court, can be admitted, and whether 
the control by the public — that is, by the state — can 
always assume the shape of the state's deciding entirely 
by itself what an owner shall be paid for the use of his 
property? The principles are elastic enough to involve 
manifest absurdities, such as the regulation of the rent of 
dwelling-houses by the state; and it is certain that the 
state, if it can establish the price to be asked for the use 
of private property affected with a public interest, could 
establish that price at such a figure that the owner would 
be deprived of his property within the meaning of the 
constitution. In such a case the regulation of the price 
by law would be manifestly unconstitutional, for the 



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THE FEDERAL OONSTTTtTION. 255 

owner would not have been deprived of his property by- 
due process of law. If, for instance, it costs a railroad 
two cents to carry a passenger a mile, and the state per- 
mits it to ask only one cent a mile, the stockholders are 
deprived of part of their property, because they are thus 
prevented from getting any income from it. But if the 
state compels them, as common carriers, to continue busi- 
ness, they are directly deprived, every day, for the benefit 
of the public using the trains, of a part of their capital,' 
because the operating expenses eat up the capital. Ex- 
perience has already shown that this kind of oppression 
does not belong merely to the realm of empty specula- 
tion. Public opinion has indulged in highly exaggerated 
ideas of the profits of railroads, and under the pressure 
of this public opinion some most dubious experiments 
have been tried. On the other hand, railroads, elevator 
companies, and similar corporations, often have a prac- 
tical monopoly, by which they can oppress, and have in 
fact oppressed, the public in a way most hurtful to the 
common weal. The state is therefore warranted in inter- 
fering by law to prevent this. A reasonable legal protec- 
tion for the public against improper profits, when free 
competition provides no, or at least no sufficient, protec- 
tion, will not be regarded as a taking of property in the 
sense of the constitution. As to railroad companies, it 
has already become very evident that, from other points 
of view as well, a more thorough state control than for- 
merly may rightly be demanded. Free competition has 
caused far greater evils than monopoly. The so-called 
railroad wars not only injure the stockholders, but often 
lead to catastrophes for the bondholders (who are prac- , 
tically unprotected), and throw the whole business system 
of the country out of gear. These continually increasing 
evils have reached such a point that, in my judgment, 



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256 00N8TITDTI0NAL LAW OP THE UNITED STATES. 

public opinion will declare with growing emphasis in 
favor of the doctrine laid down by the supreme court, in 
spite of the no small danger that its application will be 
marked with mistakes and misuse at the outset. Ways 
and means of preventing and curing mistakes and abuses 
can certainly be found. Many of them will be prevented 
by the steady growth in public favor of civil service 
reform, which deprives the public offices of the character 
of " spoils," of party rewards for party services, and so 
exerts a strong influence in giving the better elements of 
the people once more the preponderance in legislative 
bodies. This will bring about a deep-seated change in 
the legal systems of the individual states. On certain 
points, in reference to which the* principles of laisser aUer 
have hitherto had absolute sway, these principles will be 
gradually narrowed down. Nevertheless, the funda- 
mental character of all the institutions of the country, 
the customs and ways, the entire body of thought and 
feeling of the people, still give ample assurance that state- 
interference, even if carried too far in this or that partic- 
ular, will not degenerate into its opposite, that is, into 
state-control of society. 

Other decisions of the federal supreme court, such, for 
instance, as the Slaughter liouse cases, already men- 
tioned, show the same tendency in another direction. 
They do not involve so much the establishment of a new 
principle as the creation of a check upon the attempts to 
restrict, unfairly, an already recognized principle on the 
ground of the fourteenth amendment. The attempt was 
made to interpret the guarantee of equal protection 
by the laws in a way which sought on the one hand to 
make out of this guarantee a strait-jacket for the law- 
giving power at the expense of the common weal, and on 
the other hand to subject certain sides of social life to a 



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THB FBDKBAL CONSTITUTION. 257 

pressure opposed to the prevailing condition of affairs and 
simply intolerable. In the name of legal equality efforts 
were made to limit the police power of the states in a 
way which would have made a proper care of the public 
good impossible in many cases. So, too, in the name of 
legal equality efforts were made to enforce social equality 
for the negroes. Both views were based on radical ten- 
dencies. The states retained the freedom of action they 
need. On the latter point, it is certain that even to the 
negroes themselves and even in the former slave states 
this result was of great value. The whites are not con- 
stantly excited against them by having their society forced 
upon them daily and hourly in railroads, steamboats, 
hotels, schools, etc. ; and still the principle of republican 
equality is preserved, because the colored people are not 
treated as inferiors; they get what they pay for; but the 
law does not require the fact to be ignored, that they are 
another race, whose complete social amalgamation with 
the whites would run counter to nature, and therefore in 
the interest of both races should not be sought. 

§ 85. Absests, Seaboh Wabbants and Seizubes. The 
fourth amendment corresponds to the principle of English 
law which has found its popular formula in the proud 
phrase: "My house is my castle." Every man is to be 
protected against arbitrary acts of the public powers. 
These must be entrusted with sufficient authority to 
arrest criminals and to remand them; but they cannot 
use force to find out whether there is good cause for a 
judicial inquiry. " The right of the people to be secure 
in their persons, houses, papers and effects against unrea- 
sonable searches and seizures shall not be violated." The 
second clause (connected with the first by an "and") sets 
forth what conditions must be fulfilled in order to justify 
searches, seizures and arrests. It is not expressly stated 
17 



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258 CONSTITUTIONAL LAW OF THE UNITED STATES. 

that these can take place only under a warrant, but this 
is evident because this clause is simply explanatory of the 
former. Such an invasion of individual rights without a 
warrant is not permissible; and, too, quite a number of 
conditions must be fulfilled in order to give a warrant 
legal force. These conditions are that probable cause 
must be shown by oath or affirmation for its issuance and 
that the warrant itself must clearly describe the place to 
be searched, the person to be arrested, or the objects to 
be seized. This latter provision was directed against the 
so^alled general warrants (since abolished) of England, 
which without such specifications authorized the making 
of arrests, searches and seizures. The police may of 
course, without a warrant, in the legitimate discharge of 
their duties, demand and force admission into a house and 
make arrests. When a crime has just been committed, this 
power to arrest without a warrant belongs to every man. 
The person so arrested must, however, be brought at 
once before a competent court or magistrate. If any 
search or seizure has been made without a full compliance 
with the conditions of this amendment, the person mak- 
ing it is always required to prove that the case is one in 
which the public interest required this to be done.* 

§ 86. Criminal Justice. The fifth, sixth and eighth 
amendments treat especially of the legal safeguards and 
benefits which must be given a person accused of crime. 
The sixth amendment is simply an amplification of the 
third paragraph of the second section of the third article 
of the constitution. The provision that the trial of all 

1 A law which authorized revenue officers to require a mercbant to 
produce his hooks and papers in order that they might satisfy them- 
selves that the tax-laws had not been evaded has been held constita- 
tional by the courts. This decision may be all right, but the law has 
led to the grossest abuses. 



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THE FEDERAL CWKBTmiTION. 259 

crimes shall be by jury is enlarged by the guarantee of a 
speedy and public trial. Inasmuch as some of the states 
had been divided into two judicial districts, it is more- 
over provided that the trial shall take place, not only in 
the state, but also in the judicial district, in which the 
crime has been committed. Besides this, the accused 
must be informed of the nature and cause of the charge ; 
must be confronted with the witnesses against him ; is 
entitled to compulsory process for witnesses for the defense 
and also to the assistance of counsel.^ The word " jury " 
means the common-law jury of twelve men, who must 
give a unanimous verdict. If they cannot agree a new 
jury must be drawn. According to the act of June 8, 
1872, when a jury is being impaneled, in cases of trea- 
son and other capital crimes, the accused is entitled to 
twenty peremptory challenges (that is, may reject twenty 
jurors without giving any reason) and the United States 
to five ; in other felonies the corresponding figures are 
ten and three; and in all other cases three jurors may be 
set aside by each party. The fifth amendment provides 
that no person shall be held to answer for a capital or 
"otherwise infamous crime" except " on a presentment or 
indictment of a grand jury." In a presentment the grand 
jury acts upon its own knowledge without any indictment 
having been presented to it, and the indictment must 
afterwards be supplied by the court. In indictments the 
grand jury does not act on its own initiative, but on an 
indictment submitted to it for its decision. It is admitted 
that the expression " infamous crime " is a technical one, 
but the definitions are neither suflBciently clear nor en- 
tirely harmonious.* This is, however, to a certain extent, 

' In England, persons accused of crime were not entitled to the aa- 
sistanoe of counsel until the passage of the act of 1836. 
3 Branner, in the supplement to the second edition of Desty's Con^ 



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260 ooNSTmjnoNAL law of the united states. 

of no importance, because in all crimes which come within 
the judicial power of the United States, the complaint is 
made either by presentment or indictment. A grand 
jury, according to the law of March 3, 1865, must consist 
of not less than sixteen nor more than twenty-three 
jurors.^ This provision of the fifth amendment does not 
apply to the federal army or to the militia when the 
latter, in time of public peril or of war, is in the service 
of the United States; in other words, they may be sub- 
jected by law to courts-martial. !Ni o one can be compelled 
in any criminal case to be a witness against himself. Ko 
one can be twice put in jeopardy of life or limb for the 
same offense. A man is put into jeopardy (in the sense 
of this clause) only when the jury has given a verdict 
If the trial has to be stopped for any legal reason, it does 
not count as a trial under this provision. So, too, of 
course, when the person tried is granted a new trial; be- 
cause the law gives him this for his own benefit. A 
new trial is granted when the court considers the finding 
contrary to law or to the evidence produced. In capital 
cases the court can, even without the consent of the 
accused, discharge the jury if it thinks there is good 
ground for doing so. If the jury bring in a verdict 
which covers only some points of the complaint, the ac- 
cused is protected against a new trial as to these, but not 
as to the others. If the jury is dismissed without the 
consent of the accused, and it was not a case in which the 
law recognizes this as necessary, such, for instance, as a 
mistrial, he cannot again be tried for the same offense 

stitution of the United States, p. 820, says : " Infamous crimes, in the 
meaning of this clause, are only those made infamous or dedared a 
felony by express act of congress : " and cites in proof of this United 
States vs, Wynn, McCrary, III., 266. 

1 See J. Proflfatt, Law of Jury Trial, San Francisco, 1877; H. Hireh, 
Law relating to Juries, N. Y., 1879. 



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THB FEDERAL CONSTITUTION. 261 

although he has not been acquitted.* The eighth amend- 
ment forbids the requirement of excessive bail, the impo- 
sition of excessive fines and the infliction of cruel and 
unusual punishments. Bail is always admitted, except 
when the crime charged is punishable by death or life- 
long imprisonment. Even in these cases it may be 
taken. 

§ 87. Jury Triaxs in Civil Cases. The seventh amend- 
ment provides " that in suits at common law, where the 
value in controversy shall exceed twenty dollars, the right 
of trial by jury shall be preserved; and no fact tried by a 
jury shall be otherwise re-examined in any court of the 
United States than according to the rules of the common 
law." As only the preservation of a right is here con- 
cerned, this evidently refers to the English common law 
at the time of the adoption of the constitution, and the 
intention is to extend the right, so far as constitutional law 
permits, to cases in which it did not exist before. Moreover, 
since it is only a right, the parties can waive it.* So, too, 
the right is sufficiently preserved when, in case of appeal 
from the first decision, a trial by jury may be demanded. 
It is to be noticed, again, that the right is restricted to suits 

1 To the provisions of the fifth amendment as to criminal procedure, 
there is coupled-on the prohibition against taking private property for 
public uses without just compensation. It goes without saying that 
the right of expropriation belongs to the federal government only when 
public uses within its jurisdiction are concerned. It relates back to 
the "right of eminent domain " and this belongs to the states, except 
as to those rights deduced from this, which the constitutional purposes 
of the federal government require to be vested in it. In the territories 
the United States have tlie right of eminent domain. If a territory 
be transformed into a state, the right passes over to the latter. As 
to the right of eminent domain see Cooley, Constitutional Limita- 
tions, ch. XV. 

2 This is not true of criminal cases. In them the jury is a necessary 
])art of the court, and the accused cannot waive it. 



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£63 OONSTTTUTIONAL LAW OF THE UNITED STATES. 

at common law; in equity and in admiralty and maritime 
courts, it does not exist. If in a common-law suit the 
question of fact has been decided by a jury and an appeal 
is taken, the appellate court has nothing to do with the 
question of fact ; it has simply to decide whether the law 
was properly applied. It is only when a new trial is 
granted that questions of fact are retried, but even then 
they must be decided again by a jury. The seventh 
amendment also applies in common-law suits, which have 
first been tried with a jury in a state court and are then 
brought by appeal before the United States supreme 

ooart. 

AMENDMENT OF THE CJONSTITUTION. 

§ 88. Fob Amending the Constitution, different meth- 
ods are provided by the fifth article. The initiatory step 
may be taken either by congress or by the state legisla- 
tures. The latter cannot propose any amendments, but 
congress must call a convention for this purpose if the 
legislatures of two-thirds of the states demand it. This 
has never yet happened. All amendments have been pro- 
posed by congress, in which body two-thirds of each house 
must favor the proposition. The states decide whether 
its proposals shall be ratified, but congress determines 
whether the vote of the states is to be cast by their legis- 
latures or by conventions called for that particular pur- 
pose. In either case, a ratification requires the assent of 
three-fourths of the states. The constitution says noth- 
ing as to an obligation on the part of the states to come 
to any conclusion about a proposed amendment. In 
practice it has been decided that there is no such obliga- 
tion. I have already discussed the question whether and 
how far a state is bound by its assent once given. This 
has never been properly settled, and it is by no means im- 
possible that it may yet give rise to serious difficulties. 



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PART THIRD. 

THE CONSTITUTIONAL AND GENEEAL LAW 
OF THE SEPAEATE STATES. 

§ 89. Pbeliminaby Semabks. I cannot attempt to treat 
the general law^ of each of the thirty-eight states sep- 
arately. Regard for space would make this impossible, 
even if the sketch were confined to the most superficial 
outline. Yet a superficial sketch would present an end- 
less array of repetitions. But, on the other hand, the 
most cursory perusal of the different state constitutions 
suffices to convince any one that it would be just as inad- 
missible to select a certain state and to analyze its gen- 
eral law as a type of the whole. The selection would be 
entirely arbitrary ; for there are so many and such impor- 
tant differences in details that no state can be used as a 
pattern or type of the rest. It must suffice, therefore, to 
give a general characterization in broad outlines, laying 
especial stress upon what is common to all or nearly. aU, 
and briefly noting the most important differences. In 
order to lessen the repetition which is unavoidable, and 
not to heap up a mass of useless details, I shall not 
always note to how many or to which states what I say 
a^pplies. if the matters concerned are peculiar to one or 
to a few states, this will be pointed out. The omission 
to point it out must nevertheless not be construed as 
meaning always that the statement is one of quite gen- 
•eral application. In the more important questions in 
which this is the case I shall say so expressly. 

§ 90. Origin of the CoNSTrruTioNs. The constitutions 
of the states are without exception the work of constitu- 



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264 THE OONSTITDTIONAL AND GENERAL LAW 

tional conventions.* But many constitutions contain pro- 
visions that became constituent parts of them without 
the meeting of any constitutional convention. Conven- 
tions are instruments which the people use for reasons of 
expediency in constitution-making; but their task should 
always be limited to drafting a plan of a constitution. The 
people — as all the constitutions say, in a more or less 
precise formula — are the sole possessor of political power, 
and they alone, therefore, can give the state its funda- 
mental law. These are fundamental principles. It is 
not only theoretically that they are of the highest im- 
portance. It has repeatedly become of the greatest polit- 
ical significance, that conventions — partly by appealing 
to precedents in the struggle of the colonies with the 
mother country, and partly in imitation of the conven- 
tion of the first French revolution — have claimed to be 
the bearers of the people's sovereignty, — a claim that in 
its final logical results tends to a complete overturning of 
the fundamental principle of American popular govern- 
ment, that is, transforms popular sovereignty into its very 
opposite.* This doctrine, which rests on the logical ab- 

1 Americans distinguish between revolutionary and constitutional 
conventions, and many conventions are held in the United States 
which have nothing to do with adopting or amending a constitution. 

3 It suffices to recall those conventions which decreed their respect- 
ive states out of the Union after the presidential election of 1860. 
The Lecompton convention in Kansas, in 1857, was theoretically of 
peculiar interest and practically of great importance. It proposed to 
the people to vote, not whether or no they would adopt the whole 
constitution as drafted, but simply whether they woidd have "the 
ooDstitution with slavery" or "the constitution without slavery." 
The majority of the people did not want the constitution at all. At 
the election ordered by the convention " the constitution with slav- 
ery " was adopted by 6,266 against 567 votes. The territorial legis- 
lature had already fixed a later day for voting on the general question, 
and at this election 10,266 votes were cast against the oonstitution 



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OF THE SEPARATE STATES. 265 

surdity of a transfer of sovereignty, which is identical 
Tvith its entire alienation, is constantly losing ground, 
especially as far as the drafting of an entire constitution 
is concerned. Some of the constitutions provide, not only 
that the people shall decide whether a general revision of 
the constitution is to be made by a convention, but also 
that the revised or new constitution shall be submitted to 
the people and be voted upon by them. Hundreds of 
thousands of citizens can act, of course, only through 
representatives, as far as the drafting of the constitution 
is concerned, but in these cases the people have reserved 
to themselves, expressly and unconditionally, the initi- 
ative as well as the final decision.^ 

Here, therefore, no argument can be found in support 
of the other erroneous, and at least equally dangerous, 
doctrine that "the people" — meaning by this the major- 
ity of the persons with full political rights — can, by 
virtue of their sovereignty, amend a constitution in any 
form or manner other than that prescribed in the consti- 
tution. The idea of popular sovereignty has entirely 
lost in the United States that vague and demagogic char- 
acter which in the first French revolution made it the 
cause as well as the cloak of all imaginable horrors. 

and only 162 in favor of it. The result waa a bitter and protracted par- 
liamentary struggle, which finaUy ended with the victory of the free- 
soil party and of the principle of popular sovereignty, but only after 
the slave states had seceded. The number of conventions which 
have not submitted their work to the people is not small. Jameson 
(p. 446) reckons forty of them up to 1866. Twenty-nine of these re- 
vised the existing constitutions. During the same time there were 
seventy-eight conventions which followed the correct principle. Some 
constitutions contain no provisions at all about revision by conven- 
tion. 

1 This applies only to the revision of a constitution by a convention* 
I shaU refer hereafter to the initiative of legislatures as to separate 
amendments. 



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THE OONSTITUTIOITAL AKD GENERAL LAW 

"Popular sovereignty is the sole basis, not only in theory 
but in practice, of the entire legal system of the Union 
as well as of the several states ; but according to the 
American theory and practice, popular sovereignty is not 
identical with a boundless arbitrariness. The people can- 
not be bound, but they can bind themselves; and pre- 
cisely because they have bound themselves they have less 
right to place themselves above the law established by 
their own sovereign will. Although this perverted con- 
ception of the substance of sovereignty has already had 
its history in the United States,^ these principles never- 
theless, from generation to generation, have more and 
more mingled with the flesh and blood of Americans; 
and this explains the fact, often so surprising to Euro- 
peans, that we see displayed upon the broadest demo- 
cratic basis a political system which, in general, is 
characterized by an eminently conservative spirit. Dema- 
gogy has often found in this system a wide field, but ex- 
periments and innovations have so far shown themselves 
only as exceptions which prove the rule, and the agitation 
in these exceptional cases, except as to the doctrines of 
the radical abolitionists, has never passed beyond legal 
bounds. Not despite, but in a great measure because of, 
the carrying out of the principle of popular sovereignty, 
the United States have hitherto been a less favorable 
field for revolutionary tendencies than most European 
states. We must not conclude from this, as Americans 
are wont to do, that this would self-evidently and always 
be the case, under other relations and with other nations. 
§ 91. Constituent Parts of the Constitutions. The 
constitutions usually consist of three parts: the bill of 

1 See, eBpeciAlly, the history of " Dorr's rebeUion " in Bhode Island 
in 1841. The essential facts of it are concisely stated by JamesoDt 
p. 216 et 8eq. 



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or THE 8EPABATB STATES. 267 

rights, the constitution proper, or frame of government, 
and the so-called schedqle. The last, strictly construed, 
is no constituent part of the constitution at all, but only 
an appendix of temporary importance. Some constitu- 
tions do not have it at all. Jt contains mainly provisions 
as to how the people shall manifest their acceptance or 
rejection of the proposed constitution, and as to the ar- 
rangements necessary (in case of acceptance) in passing 
from the old to the new condition. 

The bill of rights contains the " fundamental rights." 
As a rule it is thus entitled, and is put at the beginning 
of the constitution. The discussion of bills of rights in 
detail does not seem necessary, for not only do they agree 
in their essential contents, but they merely set forth at 
large and in detail the principles which have already 
been stated as arising from the so-called bill of rights of 
the federal constitution. It miist be emphasized that 
here, too, the fundamental rights are not first granted by 
the constitution ; they are regarded as existing rights, 
and are enumerated in the constitution only in order to 
protect them in the most effective way against any viola- 
tion by the organs of public power. And for this reason, 
th^ bill of rights often ends with the declaration that the 
enumeration of certain fundamental rights must not be 
construed as meaning that the people have waived others. 

Organization of the Government. The separation 
of the legislative, executive and judicial powers is as 
thoroughly carried out in all the states as in the federal 
government. Many of the state constitutions expressly 
declare that no one of the three shall trespass upon the 
spheres of the others, so far as the constitution does not 
otherwise provide. 

§ 92. The Legislative Power. As a rule the official 
name of a state legislature is ^^ the general assembly," but 



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THE CONSTITUTIONAL AND GENERAL LAW 

in ordinary speech it is called simply the legislature. In 
all the states the legislatures consist of two chambers; 
the more numerous is styled the assembly or house of 
representatives, and the smaller the senate. Neither the 
franchise nor the right to seek oflBce were originally con- 

, trolled by radical democratic principles. In the course 
of time these have become more and more victorious 
everywhere. Although certain restrictions still exist here 

, and there, yet all in all I am justified in sajung that since 
the adoption of the fifteenth amendment so-called uni- 
versal suffrage has become the rule everywhere. So, too, 
the restrictions on the right to seek office relate only to the 
age and to the domicile. The provisions as to the latter 
are much more strict than in the constitutional states of 
Europe. In the latter the principle prevails that the 
voters may seek their representatives where they please, 
but in the United States it is thought necessary to lay 
great stress upon local representation. In some of the 
states the regulation of this question is not even left to 
legislation ; the constitutions provide that the transfer of 
the domicile from the election district involves absolutely 
the loss of the office and excludes — of course — re-elec- 
tion. As generally recognized is the principle that paid 
officials cannot be members of the legislature. This ap- 
plies, indeed, to state as well as federal officials.* On the 
other hand, no member of the legislature can be ap- 
pointed to a state office which was created or had its 
emoluments increased during his term of membership. 
In a few of the states clergymen are also excluded from 
the legislature. If different qualifications are required 
for membership in the two chambers, it is only as to age. 

1 Some officeholders, such as justices of the peace, are usually ex- 
cepted, because they cannot be regarded as officials in the ordinazy 
sense of the word, although they occupy a public office. 



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OF THE SEP ABATE STATES. 

A difference in principle, such as that which applies to 
the two houses of congress has no existence in the case 
of the two chambers of a legislature. The senators as 
well as the members of the assembly are directly voted 
for at the polls, and the sole difference is in the size of 
the election district.* 

The term of office is, with few exceptions, a different 
one, and that of the senators is generally twice that of 
the assemblymen. The rule is four and two years, re- 
spectively. These figures are never exceeded. In the 
assembly the members' terms all end at the same time. 
In the senate, as a rule, half the members hold over. 
This increases the possibility (as it does in the case of 
congress) that the two chambers will be controlled by 
different parties ; but, on the other hand, the continuity 
in the upper chamber serves to strengthen conservative 
tendencies. More stress may be laid upon this because — 
as we shall see when we discuss the executive power — in 
the separate states e'ven more than in the federal govern- 
ment, parliamentary government, in the European sense 
of the word, is something entirely foreign to American 
constitutional and general law. 

The regular meetings of the legislatures take place, 
some annually and some every second year. Of late, the 
drift of public opinion has been such that probably in the 

1 In niinois the constitution of 1870 introduced minority represen- 
tation for the house of representatives. The section reads : " The 
house of representatives shall consist of three times the number of 
the members of the senate, and the term of office shall be two years. 
Three representatives shall be elected in each senatorial district 
... In all elections of representatives aforesaid, each qualified 
voter may cast as many votes for one candidate as there are repre- 
sentatives to be elected, or may distribute the same, or equal parts 
thereof, among the candidates, as he shall see fit, and the candidates 
highest in votes shall be declared elected.'' 



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270 THE CONSTITUTIONAL AND GENERAL LAW 

course of time annual sessions will disappear. Experience, 
it is said, has proven in many states, that the le^slatures, 
having naught to do with higher politics, can very well, 
in ordinary times, attend in one session to all real wants 
in the way of legislation for two years, and extraordi- 
nary circumstances are suflBciently cared for by the fact 
that the governor can call special sessions of the legisla- 
ture. The experience of the states which have annual 
legislative sessions has also shown that the legislatures, 
when they do not find enough to do, always know how 
to make something to do. Once assembled, they seem to 
feel in duty bound to sit for a certain time and to pass a 
certain number of laws. The legislative statistics of the 
states which have tried both plans show that with annual 
sessions just as many laws are passed each year as with 
biennial sessions are passed every second year. In the 
former case it is evident that many laws which were at 
least unnecessary have been enacted ; and unnecessary laws, 
simply because they are unnecessary, always do harm. 
The stability of relations so essential to the welfare of 
the state and of society is thus quite uselessly destroyed 
and a highly dangerous craving for experiment fostered. 
That there is much truth in this argument cannot be dis- 
puted by any one who examines the facts without preju- 
dice. The opinion that it might be wise to bridle the 
legislative zeal for law-making is too old a one, in the 
United States, to be suppressed by declaring it to be a 
heresy affecting the fundamental principles of democracy. 
Several constitutions limit the length of the session. In- 
deed, they measure out the time in quite a niggardly 
way — forty and forty-five (but also sixty and ninety) 
days. Of course, the established time can be exceeded, 
but it needs so large a majority to do this that it cannot 
be done easily or on any but really valid grounds. The 



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OF THE SEPARATE STATES. 271 

constitution of Nebraska (adopted 1867) tried an odd 
remedy. It did not limit the duration of the sessions, but 
while, like the constitutions of all the other states, it 
adopted the principle of paying the members of the legis- 
lature a per diem^ it provided that they should not be 
paid this for more than forty days. As far as the desired 
eflPect can be expected from this sort of pressure, it could 
also be brought about by paying a proper annual salary 
instead of a per diem. This has also been tried (in Wis- 
consin, by an amendment adopted by the people in 1867), 
but except in the case of these states public opinion has 
either not yet been warmed up to these experiments, or 
has busied itself only with the question whether changes 
in this direction are desirable. 

The question of the powers of the legislatures is essen- 
tially different in constitutional law from the question of 
the powers of congress. Congress has only the powers 
granted it by the federal constitution. The legislative 
power of the state legislatures, on the contrary, is unlim- 
ited, as far as no limits are set to it by the federal or the 
state constitution.^ This does not mean, however, that 
these restrictions must always be expressed in explicit 
words. As it is generally admitted that the factors of 
the federal government have certain ''implied powers," so 
it has never been disputed that the state legislatures are 
subject to "implied restrictions," that is, restrictions 
which must be deduced from certain provisions of the 
federal or state constitution, or that arise from the polit- 

1 " The rule of construction of state constitutions is that they are not 
special grants of power to legislative bodies, like the constitution of 
the United States, but general grants of aU the usuaUy recognized 
powers of legislation not actually prohibited or expressly, excepted. 
The exception must be construed strictly as against those who stand 
upon it, and liberally in favor of the government." Southern Pousific 
E. B. Co. V8. Orion, 6 Sawyer, 157; Hammond, I., 20, § 28. 



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272 THE CONSTITUTIONAL AND GENERAL LAW 

ioal nature of the Union, from the genius of American 
public institutions, etc. But in a discussion of the author- 
ity of the state legislatures, the question always is, not 
what can they do, but what cannot they do ? Then comes 
the further question: how must they do what they are 
authorized to do? On both questions, I can here present 
only a few especially significant or especially character- 
istic results of the doctrines already developed. 

The legislative initiative belongs exclusively to the legis- 
latures and to both chambers in exactly the same way. 
It is true that here and there an assembly has been 
granted the privilege of originating all " money bills," 
biit the idea has steadily become of more general accept- 
ance that there is even less reason for a legislature's than 
for congress's taking the English constitution as a pattern 
in this particular. For the senates of the state legisla- 
tures are just as much popular bodies {i. e.y representatives 
of the people) as the assemblies. There is therefore no 
analogy of relations. This freedom of initiative does not, 
however, involve complete freedom in matters of form. 
A large number of state constitutions provide expressly 
that every law shall contain but one subject, — a provision 
that might well be brought into the federal constitution, 
because wrong is often done in federal legislation by the 
so-called " riders." * The " appropriation bills," especially, 
have been used to carry through measures which, if pro- 
posed independently, would either not have received a 
majority of votes in congress or else not have been ap- 
proved by the president. As long as it has not been 
expressly declared unconstitutional, in so many words, to 
couple together in one law subjects foreign to each other, 
and, moreover, as long as the president (or, in a state, the 
governor) can only approve or return appropriation bills 

iSee my Ccngtitutional History^ UL 



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OF THE SEPARATE STATES. 373 

in toto^ the majority of one or the other house will be ex- 
posed to the temptation — especially in times of great 
political excitement — of making their will law in this 
disloyal and disgraceful way. 

Of scarcely less importance is the provision, found 
likewise in many constitutions, that each bill must be 
read three times loudly and distinctly, word for word. 
If this had to be done in congress, much mischief would 
be prevented. There the bills are often read only by 
their titles, and at the close of each session a veritable 
flood of bills breaks upon the house. And they are voted 
upon, although most members have no inkling of the 
contents of a large part of them. It goes without say- 
ing that this results in smuggling through, every year, 
many things which could not stand the light of day. 

There is a striking clause in several constitutions which 
provides that for the adoption of a proposed bill the ma- 
jority of those present, that is, of the members voting, 
shall not suffice, but that a majority of all the members 
elected is required. The essential motive for this provis- 
ion may be the quite general belief that the welfare of 
the people is best subserved if the legislative machine 
moves as safely as possible, and that therefore the disad- 
vantages resulting from the difficulty of passing good 
laws are more than counterbalanced by the benefits re- 
sulting from the difficulty of passing bad laws. It is, 
however, not improbable that this rule is more particu- 
larly directed against the danger that laws which did not 
correspond with the real will of the legislature might be 
carried through by an unscrupulous minority by deftly 
seizing the opportunity of voting on them at a certain 
moment when a bare quorum was present. It is ea«y to« 
think so, because in the constitutions of more recent date- 
manifold other provisions have been adopted that can ba 
18 



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274 THE OONSTITUnONAL AND GENERAL JJlW 

explained only by the conviction that enough care can 
scarcely be taken to guard against the tricks of unprinci- 
pled politicians who have known how to win a seat in the 
legislature.* The precautions taken go so far in some 
cases that the courts either cannot take cognizance of viola- 
tions of the provisions in point or for other reasons cannot 
make them the basis of a decision, — a manifest and very 
dangerous anomaly; for, if unconstitutionality makes 
laws null and void, and courts must decide whether laws 
are unconstitutional, the constitutions should contain no 
provisions which may cause the constitutional question 
to be raised at any moment, but in the very nature of the 
thing exclude every possibility of its decision. More- 
over, the abuses in the legislatures in the separate states, 
to which these provisions so pointedly refer, cannot pos- 
sibly be prevented by such formal precautions. These 
apply solely to the symptoms. They leave the causes 
utterly untouched. When, however, it is thought neces- 
sary to provide in a most skilful way these formal pre- 
cautions, it is evident that the abuses are so grave as to 
demand the most serious efforts to reach their roots. 
And this the more, because the limits of the legislative 
authority of the legislatures are so wide, and as a result 
of the principle already laid down cannot be defined with 
the certainty and clearness that might be wished. It is 
far easier to prevent an abuse of power if what may be 
done can be defined than it is when the only statement 
is as to what may not be done, and yet the necessary 
freedom of action is to be preserved. But if in the prac- 

1 See in the Nation of July 15» 1875, the article entitled ** A New 
Kind of Veto." It says that "provisions like these . . . proceed 
not upon the theory that certain subjects have been proved by expe- 
rience improper for legislation, but on the much simpler theory that 
the legislature is a body which cannot be trusted to act honeBtly.'* 



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OF THE 8EPABATB 0TATES. 275 

tical workings of legislation evils have come to light and 
have developed in sach a threatening manner that it has 
been deemed necessary to provide such formal precau- 
tions, this is scarcely at all dae to the fact that the choice 
of means to prevent such evils, when the constitutions 
were drafted, was not quite happy. The appearance and 
development of these evils is much more due to quite spe- 
cial causes, chief among which is the fact that offices are 
treated as party booty (spoils) for the payment of party 
services, and thereby politics is made a business which is 
the more profitable the more unclean it is, and which 
promises a man a surer chance to climb the political lad- 
der the more he subordinates statesmanship to the polit- 
ical machine. Apart from this question of office, the 
regulation of which, moreover, is mainly left to the law- 
giving power, the constitutions have found very correctly 
the points which are the most essential for assuring pure 
legislation intended for the true welfare of the people. 
Moreover, the correct fundamental principles are as a 
rule applied to details in a proper and effective way with 
no small skill. Many of the constitutions put each indi- 
vidual member of the legislature, as far as possible, under 
the steady and immediate control of public opinion, by 
providing that in passing bills and in all elections by the 
legislature the vote must be by roU-call and viva voccy 
while, on the contrary, in popular elections the secret 
vote by ballot is the unbroken rule of all the states. 
The more recent constitutions are especially careful to 
keep the legislatures as far as possible from all tempta- 
tions to abuse their power. Experience has taught that 
these temptations are most potent in cases of " special 
legislation," and therefore the tendency has become 
stronger to bind the hands of the legislatures as firmly 
as possible in relation to this ; to allow them to enact 
only general laws in order not to give advantages of one 



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276 THE OONSnrUTIONAL AND GENEEAL LAW 

kind or another to individuals at the expense of all. 
Special attention is therefore given in the constitutions to 
the chapter on " corporations." In relation to these -the 
course of legislation is as precisely defined as the nature 
of the subject will permit. For inasmuch as this involves 
moneyed interests, often of vast proportions, the most 
powerful levers may be applied to break a wide gap for 
corruption. The power to pledge the means or credit of 
a state in any wise whatsoever for a corporation is either 
strictly limited or entirely denied. Some constitutions 
go still further. They seek generally to keep the state 
aloof from all matters in which considerable sums are to 
be spent in a manner which might offer people with easy 
consciences and dexterous as well as covetous hands a 
good opportunity to fill their own pockets out of the pub- 
lic purse. Several constitutions absolutely prohibit the 
state's undertaking such works of general utility as are 
called in the United States "internal improvements." 
Others refuse the power to contract debts in this behalf, — 
a policy that certainly has two sides to it. To show this 
I need only refer to the history of the Erie canal, which 
New York must in a large measure thank for her domi- 
nant position in the economic life of the Union. This 
example points to the second motive, that, besides the 
reasons assigned, lies at the foundation of these pro- 
visions. The American people is almost unanimous in 
the opinion that the state should undertake no tasks 
which private efforts can compass. This opinion has 
been strengthened of late by the history of the land 
grants to railroads, since the completion of the great 
transcontinental railroads, which without such assistance 
could not have been built.^ 

1 These roads, however, are not the only ones which have received 
land grants from congress. The first grants were made September 
dO, 1850, for the benefit of the Dlinois Central, Mobile & Chicago^ 



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OF THE SEPARATE STATES. 277 

. Among the most intelligent and cultured Americans 
the admission is, however, not infrequently made that the 
state's sphere of activity at present cannot be extended 
beyond what is barely necessary, because the govern- 
ment is in such hands that increased activity by it in the 
direction indicated might be expected to add new and 
greater evils to the evils now due to private control of 
large public interests, such as the greater part of the pub- 
lic channels of commerce. It is evident not only from 
the formal precautions already mentioned, but also froni 
many other constitutional provisions, that the idea pre- 
vails that a legislature must be approached with a certain 
amount of distrust. In this respect, the constitutions are 
a faithful expression of public opinion. This is, indeed, 
one of the most characteristic diflferences between the 
constitutions of the separate states of the Union on the 
one hand, and on the other hand the constitutions of 
European states, and also that of the United States. On 
an important question this distrust sometimes assumes a 
shape which lets it appear more in the light of a guardian- 
ship, but it is none the less overw^helming.^ As a rule, so 

and Mobile & Ohio Kiver roads. From the date mentioned until 
March 8, 1873,— since then, so far as I know, no grants have been 
made, — there were one hundred g;*ants to seventy-two railroads, 
making a total of about one hundred and ninety million acres. The 
last figure is calculated from those given in the report of the com- 
missioner of the general land office, but the government itself de- 
clares that these figures are unreliable. The Union and Central Pacific 
received, besides the land gfants, a subsidy of about $55,000,000 in 
the form of a government guarantee of their bonds. The govern- 
ment has as security a second mortgage on the railroads. The land 
grants are so made that a certain number of sections on both sides of 
the line of road is granted for each mile built. The number of sec- 
tions varies. 

iThe foUowing utterances of the Nation of January 29, 1885, are 
very noteworthy: " The assembling of the legislatures of the various 



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278 THE coNanTUTioirAL ahd general law 

far as financial legislation is concerned, the legislatures 
are subject to very precise rules. These are intended to 
prevent a disordered and lax management of the finances, 
and as they attain their aim as far as constitutional pro- 
visions can do so, they present no occasion for unfavor- 
able criticism. The unconditional obligation, when a 
public debt is contracted, to make arrangements at the 
same time for its redemption — sometimes the redemption 
must take place within a very limited time — unquestion- 
ably deserves all praise. A very peculiar impression is 
made, however, by the fact that the constitutions fix the 
maximum of the permissible state debt, and in fact fix it 
so low that even a small city could bear the burden with- 
out peril. The extraordinary instances of a war, of sedi- 
tion or of an invasion are always excepted, indeed, and 

states for their winter's work has attracted fresh attention to the ma- 
chinery of legislation and produced many suggestions on the subject 
All of these rest generally on the idea that most legislative work in 
the United States is defective and slipshod ; that the laws are badly 
drawn; that they are passed without proper reference to and com- 
parison with statutes already in force ; that they are frequently jobs 
disguised as statutes. Gk>vernor Hill, of this state [New York], in his 
first message, recommended that a lawyer be appointed as perma- 
nent legislative counsel, to draft bills, to advise the members and 
committees with reference to proposed legislation, and to inspect the 
various bills before their final passage, so as to detect errors and im- 
perfections and to suggest necoessary amendments. The necessity of 
taking some such step, he thinks, is shown very clearly by the fact 
that, during the session of 1883, in this state, some forty-five bills 
were recalled from the executive chamber after their final passage 
for necessary amendment and correction, while during the session of 
1884 there were fifty such instances ( I). The critics of the governor's 
recommendation can only say in reply to this that such work ought to 
be done by the legislative committees themselves ; but the evil to be 
cured is the fact that the committees wiU not do it. The only ma- 
chinery for preventing bad legislation at Albany is the veto of the 
governor, and the governor now has to do the work of legal adviser to 
the legislature, through the veto power, in a very clumsy way; t. &, 



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OF THE SEFABATB 8TATBS. 279 

the American states are rich enough to make their or- 
dinary taxes meet their ordinary wants by honest and 
half-way reasonable economy without difficulty. But a 
refusal, except in the cases when the very existence of 
the state is more or less threatened, of the right to nego- 
tiate a loan, — for the right of borrowing a few hundred 
thousand dollars is but a nominal one, — such a refusal 
can be justified only on the supposition that certain tasks 
which are ordinarily performed by the civilized states of 
the old world ought not to be undertaken by the Ameri- 
can states, if these tasks require the expenditure of more 
money than the current revenue can supply. In such 
matters, the states cannot go to work in a far-sighted 
way for future benefits. They must limit themselves to 
a policy of to-day and to-morrow. It is evident from the 

he has in most cases to correct defects by killing the bills, when, if 
the legislature could have been properly advised at the outset, amend- 
ments might have been made which would tiave enabled him to sign 
them.*' These circumstances are the more significant because in all 
legislatures lawyers form the most prominent element. These evils 
appear in their worst form in the so-called " private bills." Of these 
the article quoted says: *' As soon as business begins, a great crop of 
bills is introduced, most of which are designed to give some person or 
corporation a special privilege under, or exemption from, the opera- 
tion of laws binding on the community. These bills are drawn up, not 
by the legislators who introduce them, but by lawyers privately re- 
tained and paid by the special interests behind the bills, and who, 
naturally enough, aa long as they get what their clients want, care 
very little what the effect on the general body of the law may be. 
When the bills, thus prepared, get into committee, there are no rules 
of any value governing the procedure with regard to them. Those 
interested adversely have not necessarily any notice to appear; there 
is no attempt to take proof judiciaUy, but * counsel ' are permitted to 
make any statements they please." As a remedy the procedure is 
proposed, the introduction of which, more than half a century ago, 
put such an effective end to similar confusion in England. In Massa- 
chusetts this approved method has already been introduced to a cer- 
tain extent. 



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280 THE CONSTITUTIONAL AND OBNEBAL ULW 

provisions cited as to internal improvements that this ' 

was more or less consciously the intention of the framers 
of the state constitutions. In this they have found 
themselves on the whole in accord with the character of 
the actual development of the relations of life in the 
United States up to the present time. Americans — 
viewed from the stand-point of the most highly civilized 
states of Europe — are still obliged to apply the greatest 
part of their strength in working out of the rough and 
in laying broad and deep the foundations of a civilized 
state of the highest order. They have not the surplus of 
time, of intellect and of capital needed to extend the 
state's activity as far and place it on as sure a footing as 
in the oldest civilized states of Europe. Hitherto, too, they 
have had no occasion to give up the fundamental idea of 
their policy, for the result has proved that the peculiar 
problems of civilization, with which they have been 
brought face to face, will be soonest and best solved by 
the state's retiring into the back-ground. In that event, 
the organization of society and its organic work result in 
the freest possible action ; and in society the initiative 
and power of the individual is given the widest scope. 
The duties of the state are much more limited, and there- 
fore general law has not only a different but a much 
smaller field; but the (strictly speaking) constitutional- 
law side of general law is far more developed than in 
any nation on the European continent. Even the lan- 
guage shows this. It contains no word that fully corre- 
sponds to our German idea of general law. It is there- 
fore scarcely surprising, that — at least as far as my 
knowledge extends — there is no work which treats of 
general law as we would understand this in Europe. All 
the boolcs worth consideration treat only of constitutional 
law or particular parts of it. They simply touch here 



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OF THE 8EPABATE STATES. 281 

and there upon those points of general law which are not 
in the narrower sense of the word constitutional. This 
and also the great scarcity of monographs on this part 
of general law indicate, in fact, that there is no proper 
interest in such questions. But this is partly explained 
by the fact that from lack of material many chapters 
must be written in as many lines as pages would be re- 
quired in which to treat the subject in a European state. 
The United States have immense, and some of the 
states have very considerable, expanses of public lands. 
But they do not cultivate them. They simply sell them. 
These public lands hide mineral treasures of every kind. 
But the state does not mine them. It simply passes laws 
as to how private persons can acquire the right of min- 
ing. As to how the mining is carried on, it concerns it- 
self little or not at all. There are no mining-officials 
just as there is no administration of the public domain. 
Legislation on mining is practically restricted to the point 
named. The products of agriculture are so enormous 
that they have become one of the most important fac- 
tors in the world's economy, but agriculture is so far out- 
side the domain of the federal government that it can do 
httle more than gather statistics about it.^ The separate 
states on the whole adhere to the principle that the 
farmer, like the shoe-maker and tailor, must find out for 
himself what is good for him.^ There is a series of 

1 It seems, therefore, foolish to try at the present time (January, 
1885) to create an agricultural department at Washington. 

^ Some attempts have heen made to promote tlie improvement and 
development of natural resources hy state aid. Thus, for instance, 
the constitution of Maryland provides that a ''superintendent of 
labor and agriculture" shall be elected by the people to serve for four 
years and leaves it to the legislature to determine whether the ofBce 
shall continue to exist. His chief duties are to be to " supervise all 
the state inspectors of agricultural products and fertilizers " and to 



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383 THE CONSTITUTIONAL AND GENERAL LAW 

questions in which the general good imperiously and ur- 
gently demands the interference of the state (for instance 
in the management of forests) to lead public opinion to 
such a point that it will allow or demand the setting 
aside of the doctrine of laisser /aire. With absolutely 
criminal laxness all energetic measures to prevent the 
forest fires caused by carelessness, which annually destroy 
millions of property, are still neglected. And although 
de-foresting has already become a public calamity and 
danger of terrible magnitude, nothing has yet been done 
to prevent it except offering rewards of different kinds for 
tree planting." Neither the United States nor the states, 
therefore, have taken any especial care about natural 
products. As far as trade is concerned, the federal govern- 

** enquire into the undeveloped resources of wealth of the state of 
Maryland, more especially concerning those within the limits of the 
Chesapeake Bay and its tributaries, which belong to the state, and 
suggest such plans as may be ctdculated to render them available as 
sources of revenue." His duties, moreover, embrace those of the 
former commissioner of immigration and the immigration agent. 
(Many states have officials who are charged with the advancement 
of immigration and everything connected therewith.) In Alabama, 
the constitution of 1868 created a bureau of industrial resources with 
similar but still more comprehensive duties. Even where ths consti- 
tutions provide nothing of this kind, something has sometimes been 
done by legislation here and there. The federal government does a 
gpreat deal for the discovery and improvement of natural resources 
by its very exact geological surveys. These show in detail all other 
particulars about the districts examined. Even the preservation of 
the wealth of fish in the ocean and in the lakes has been the care of 
the federal government. The act of February 9, 1871, created a com- 
missioner of fish and fisheries for the study of the questions involved. 
1 In this respect the federal government does more than the indi- 
vidutd states. If a man plants trees in a certain way for eight yean 
upon ten out of one hundred and sixty acres, and at the end of the 
eight years has at least six hundred and seventy-five vigorous trees 
on each of the ten acres, he becomes the owner of the entire track 



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OF THE SEP ABATE STATES. 

ment comes to the front, for it has to regulate foreign 
and inter-state commerce. Since it has not hitherto deemed 
it necessary to have a special minister of commerce, the 
states, of course, have felt much less need of entrusting 
special oflBcers with the care of commercial interests. 
Industry is very greatly influenced by federal tariflf legis- 
lation, but industries as such lie outside the jurisdiction 
of the federal government. Factory-laws and business 
legislation are matters for the separate states, which, so 
far as I know, have given them so little attention that 
they can scarcely be called the care and province of the 
state.^ Of the many-sided social-political problems so 
vigorously agitated in Germany at present, the only one, 
so far as I am informed, which has played any part in 
state or federal legislation, is the question of the legal or 
normal day of labor. In what states and in what way 
the question of child-labor in factories has been regulated 
by law, I am unable to say; for the laws of all the thirty- 
eight states are not at my disposal. At least some of 
the states have put certain limits on individual freedom 
in this respect. This is evident from the general laws 
relating to attendance at school. The -school system and 
ecclesiastical affaire will, however, be discussed later in 
special paragraphs. Here it need only be said that the 
state's interference with these, in comparison with what 
all the European states do, is also very slight. The bu- 
reau of education at Washington must confine itself, on 
grounds of constitutional law, to collecting statistical 
and other materials, elaborating them in a useful way, 
and bringing them to the knowledge of the people; and 
even in the individual states a " minister of public in- 



^This may not be entirely true of all the states, especially the 
North Atlantic states. 



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284 THE OONSTITUnONAL AND OENERAX LAW 

struction " would be a luxury. A " Kultus-minister " — 
a minister of worship — is simply a non-existent thing 
for the United States and for the separate states. There 
is no field in the separate states even for a minister in 
charge of the channels of public intercourse. The post 
is controlled by the nation, and railroads and telegraphs 
with few exceptions are purely private undertakings. 
" Public works " these certainly are, but in general they 
play such a subordinate part that even where there is a 
board of public works, its duties are often assigned to 
other higher public officials as secondary work. Public 
benevolent institutions, hospitals, blind asylums, deaf- 
and-dumb asylums, houses of correction for neglected 
children and juvenile offenders, poor-houses, etc., are sup- 
ported by all the states. In the new and sparsely settled 
states, of course everything desirable in this direction is 
not, and cannot, be done at once. But even in most of 
the older states the public care for these interests does 
not go as far and is not as systematic as in the most 
highly developed nations of Europe. This is partly be- 
cause even these older states are still in process of devel- 
opment, but in a great measure also because private char- 
ity relieves the state of these as well as of many other 
burdens to an extent which would be strange in Europe. 
The fact that the states are almost all still in the process 
of formation, as well as the more intense and compre- 
hensive independent action of various organizations for 
public purposes within the states, bring about the result 
that the entire state administrative apparatus, in organi- 
zation and in efficiency, has crystallized, far less than in 
Europe, into fixed, systematic and thoroughly constituted 
forms. The Sidnnnistrsitive personnel is much more change- 
ful and therefore the administration does not possess the 
same stability. Although this is fraught with manifold 



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OF THE 8EPABATE STATES. 285 

evils, yet these evils are far less numerous and important 
than an European observer would suppose. This is 
partly because the administration has much more limited 
tasks, and partly because the people have for generations 
undergone a schooling in self-administration and self- 
government which the people of continental Europe have 
never had. If the general law of America has much 
less extent than that of Europe, on the other hand the 
chapter on self-government in the public relations of the 
United States is far more extensive. 

§ 93. The Executive. At the head of the executive 
power of all the states is a governor, elected directly by 
the people. All male inhabitants are eligible as gov- 
ernor, provided they are of full age, have the franchise, 
and have been for a certain time citizens of the United 
States and inhabitants of the state. This time is very 
different in different states. The right of re-election is 
unlimited in most states. Where this is not the case the 
same person can occupy the office, at most, only a cer- 
tain number of years within a fixed period, or else an 
immediate re-election is prohibited. If the popular elec- 
tions result in no choice, the legislature elects one of the 
two candidates who received the highest number of votes. 
The particular provisions for this event vary greatly. 
The term of office is from one to four years. In about 
half the states it is four, and in the majority of the re- 
mainder two years. If by death, removal from office or 
sickness a vacancy occurs in the gubernatorial chair, the 
lieutenant-governor, elected by the people at the same 
time as the governor and for the same period, exercises 
the functions of governor.^ After the lieutenant-gov- 
ernor, the president of the senate and then the speaker 

1 Imx)eachment is common to all the states. In aU essential mat- 
ters, the procedure follows the prototype of impeachment under the 



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286 THE CONSTITUTIONAL AND GENEBAL LAW 

of the assembly replaces the governor. A minority of 
the states have no lieutenant-governor. In these, the 
president of the senate generally takes the place first, but 
sometimes the secretary of state does so. 

The duties and rights of the governor correspond oa 
the whole to those of the president of the United States, 
but in sundry respects his authority is much less. His 
first and most general duty is to take care that the laws 
are executed. He represents, further, the state exter- 
nally, especially in relation to the other states. He influ- 
ences legislation in the same way as the president does. 
In his messages, in which he makes a report to the legis- 
lature of the condition of the state, he also suggests the 
enactment of such laws as seem necessary or expedient, 
but he can make no formal proposal of a law. All bills 
require his assent. If he does not approve them, they 
must be adopted by a very large majority in both houses 
in order to become laws nevertheless. As a rule, a two- 
thirds majority is required, sometimes two-thirds not 
only of those present, but of the whole membership.* 

federal constitution. The assembly is prosecutor, the senate jadge. 
A two-thirds majority is required for conviction. Its consequence is 
the loss of office. It is noteworthy that some of the constitutioiis 
expressly forbid the impeached officiates acting in his official capacity 
during the trial. In others this provision is restricted to the judges. 

The lieutenant-governor, as long as he does not exercise the fono- 
tions of governor, is ex officio president of the senate. He can vote 
only in case of a tie. 

1 The ** system of checks and balances," in which Americans rightly 
see one of the most substantial guaranties of the preservation of a 
rational rule of liberty, has found application, in some few constitu- 
tions, in relation to this question, either not at all or only to a very 
limited extent. Either the governor has no veto at all or else a sim- 
ple majority of the members-elect of both houses suffices to make a 
biU law over the veto. It is, however, significant that these provis- 
ions are found as a rule in some of the older constitutions. The dom- 



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OF THE SEP ABATE STATES. 287 

Moreover, the governors of some states have this great ad- 
vantage over the president, that they can refuse to approve 
separate parts of an appropriation bill, and yet approve 
it as a whole.^ If the governor considers it necessary, 
he can call an extraordinary session of the legislature. 
He is commander-in-chief of the militia, when they are 
not employed in the service of the United States. The 
constitutions of several states, however, expressly provide 
that he must get the consent of the legislature before 
personally taking command of them and assuming the 
immediate leadership. Besides this, his right to appoint 
the militia oflScers is more or less restricted. Not only 
do his appointments usually require confirmation by the 
senate, but the right of appointment is. limited in many 
cases to the higher ranks, sometimes indeed to the high- 
est. In some states the highest oflBcers are elected by the 
legislature, and these appoint the others, while the non- 
commissioned officers are elected by the men.^ The right 
of pardon possessed by the governor is also, as a rule, a 
very limited one. Sometimes he can use it only with the 
co-operation of other high officials,' and more often he 
must give the legislature an exact report and state the rea- 

inant tendency is undoubtedly the oonBervative one. For example, 
the West Virginia constitution of 1861 gave the governor no veto, but 
it was granted him by the constitution of 1872. 

1 This important provision is rapidly finding place in an increasing 
number of constitutions. 

2 All able-bodied citizens from eighteen (or twenty-one) years of age 
to forty-five are usually liable to serve in the militia. Many consti- 
tutions permit persons conscientiously opposed to carrying arms to 
escape by paying a fixed sum. These moneys are often assigned to 
the school fund. In the Oregon constitution of 1857, the absolution 
is restricted to times of peace. 

'For example, the so-called '* council," an institution that has 
proved itself of so little worth that it is found in none of the younger 
states, and older ones in which it formerly existed have abolished it. 



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288 THE CONSTITUTIONAL AND GENERAL LAW 

sons for the exercise of his power. The greatest distinc- 
tion between the authority of a governor and that of the 
president is in regard to the right of appointment. Even 
comparatively speaking, the number of offices to be filled 
by executive appointment is much less in a state than in 
the Union. The highest state officials, who take the 
place, more or less, of ministers, are not appointed at aU. 
This is of the greatest significance. They are the ad- 
visers of the governor, for he is expressly authorized to 
demand written opinions from them on all questions in- 
volved in their duties. They are, however, as a rule, not 
only deliberative organs of the executive power committed 
to the governor, but they have, under the constitution, 
an independent share in the supreme executive power. 
Some constitutions expressly declare that a " governor 
and" such and such officials shall constitute "the execu- 
tive department." This is why, at the beginning of this 
paragraph, I could only say that at the head of the execu- 
tive power of all the states there is a governor. And 
even where it is not expressly stated that other officials 
have an independent share of the executive power, it is 
nevertheless the case in fact, because the other higher 
officials — sometimes all, and sometimes at least some of 
them — are given their offices without any co-operation 
by the governor, direct or indirect. As a rule they are 
elected by the people, but sometimes by the legislature. 
When some are appointed and some elected, the attorney- 
general is usually among those appointed. In the sepa- 
rate states, therefore, much less than in the federal 
administration, is there a cabinet in the European sense 
of the word. And in the states, in ordinary sj>eech, a 
cabinet is never heard of.^ The executive in most of the 

i The Florida constitution of 1868, under which all the officera in 
question are appointed by the governor with the consent of the Ben- 



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OF THE SEPABATB STATES. 

states is not a unit. This bars parliamentary government 
in them to even a greater extent than in the Union. The 
governor of Virginia, according to the constitution of 
1850, was more dependent upon the legislature in this 
respect than the governor of any other state. For 
his term of oflBce was four years, and the higher state 
officials were elected by the legislature for only two 
years. The observation just made applies to Virginia, 
however, in spite of this, just as unconditionally as it does 
to all other states. The occasional majority of the legis- 
lature can confide a very considerable part of the execu- 
tive power to persons in full political accord with it, but 
the greater portion is still vested in the governor. So far 
as the constitution makes him the bearer of the executive 
power, it gives him the position of a factor of the govern- 
ment co-ordinate with the legislature, such as the federal 
constitution gives the president. It is still more evi- 
dent from the Indiana constitution of 1851, that the high- 
ate, is an exception, for it expressly designates them as " a cabinet of 
administrative officers." A quite peculiar organism was created by 
the North Carolina constitution of 1868. Although the particular 
officers are elected by the people, art. III., § 14 (executive depart- 
ment), provides: " The secretary of state, auditor, treasurer, superin- 
tendent of public works and 8ui)erintendent of public instruction, 
shaU constitute ex officio the council of the state, who shall advise 
the governor in the execution of his office, and three of whom shall 
constitute a quorum ; their advice and proceedings in tliis capacity 
shaU be entered in a journal to be kept for this purpose exclusively, and 
signed by the members present, from any part of which any member 
may enter his dissent ; and such journal shall be placed before the 
general assembly when caUed for by either house." A council of state, 
elected by the people, whose individual members are party organs of 
the highest executive officer, and which.ls, as a whole, partly a pseudo- 
cabinet and partly an agent of the legislature, by which the political 
acts and omissions of the governor, as well as of the pseudo-cabinet 
itself, are in a way subjected to permanent police supervision, is a 
political bastard, that ought indeed to be the only one of its kind. 
19 



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290 THE OOKSnTUTIONAL AND GENERAL LAW 

est state ofBcials are not ministers, much less as a whole 
a cabinet, with which the governor is to rule in a parlia- 
mentary way. Under it the secretary of state, auditor and 
treasurer are elected by the people for two years, while 
the governor is elected for four years. Other constitu- 
tions, too, fix different terms for the treasurer and for the 
governor. If the treasurer were a minister, this would 
be an inexplicable anomaly. But not only as to the 
treasurer, but as to all the others who with and under the 
governor constitute the executive department, the polit- 
ical side of the office is relegated to the back-ground. 
This is true even of the secretary of state, for in spite of 
his high-sounding title, he is simply chief clerk and cus- 
todian of the state seal. But if these officials are some- 
times not simply, and often not even chiefly, organs of 
the governor, they are fundamentally officials only in the 
more limited sense of the word. It is only the governor- 
ship which bears a sharply defined political character. 
This is the natural result of the fact that the executive is 
granted only such an indirect and restricted share in leg- 
islation, and of the fact that legislation itself has only a 
relatively narrow field of operations, and this practically 
outside of politics. The jurisdiction of the federal gov- 
ernment is so wide, and the state legislature is (within the 
sphere of action left to the central powers of the states by 
the high development of self-government) in the very 
nature of things so much the dominant factor in a demo- 
cratic republic,^ that the separate states have wisely 

1 This is sharply emphasized by the provision in several oonstita- 
tions, that officials — even judges — on demand of a two-thirds major- 
ity of the legislature shall be removed from office by the governor. 
As a rule, oertain definite grievances must form the basis for such a 
demand. At this point, I may mention that the principles of dvil 
service reform are daily gaining ground, that is, that offices witboat 
political significance are fiUed by appointment, are graduaUy losiag 



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OF THB BBPASATB STATB8. 291 

renounced the complex apparatus of ministers and minis- 
tries. The number of the officials who with the governor 
constitute the executive department, viz., i. e.j advisers 
of the executive and executive organs, is diflferent in the 
different states. Even in their names there is variety. Be- 
sides, or in place of, those already mentioned, some states 
have a comptroller-general, a solicitor-general and a sur- 
veyor-general. 

§ 94. The Coxjbts. The organization of the judicial 
system presents so many differences, and even where 
these are slight, the names of the courts are often so dif- 
ferent, that a general characterization in a few sentences 
is impossible, unless the discussion is restricted to that 
which is common to the judicial systems of all civilized 
states in modern times. Two points must, however, be 
presents, because in them the judicial system of the 
several states is substantially diflferent from that of the 
United States. Although it has never yet been thought 
that the provision of the federal constitution, for the ap- 
pointment of all federal judges " during good behavior," 
should be complained of as unwise, yet nearly all the 
states have wholly abandoned this principle. The judi- 
cial term is only for a fixed number of years, and often 
by no means for many years. The term of office varies 
very much in the different states. The general rule, 

their former character of party booty — spoils. Whether the United 
States wiU ever have as firm an official tenure as prevails in Europe 
is nevertheless, to say the least, very doubtful. They are still very 
far from it. How deep the roots of the conviction that " rotation in 
office " is a democratic principle, or, indeed, a necessary requirement 
of « free state, have penetrated, can be inferred from, for example, 
the facts that the Mississippi constitution of 1868 provided that no 
official should be elected or appointed to serve " during good behav- 
ior,'* and that the Oregon constitution of 1857 actuaUy forbade the 
creatacm by law of an office with a term of more than four years. 



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292 THE ooNsnnrnoNAL and general law 

however, is, that it is longer as the court is higher. When 
several jadges sit in a court, as a rule no integral re- 
newal of the court takes place. In addition to the lim- 
itation last noted, the principle of irremovability is 
generally recognized. But the judges, like other ofiScials, 
are subject to impeachment. But it is evident that 
Americans have not been blind to the dangers involved 
in yielding too much, on this very point, to the demo- 
cratic tendency to make everything fluid and nothing 
fixed. In another direction, in turn, the "democratic 
principle " has made a wide breach in the old traditions 
and steadily widened it. True, the judges are still ap- 
pointed, in several states, by the governor, but election 
has become the rule. In some states the legislature 
elects, but in a much greater number, the people. The 
constitutions place no express restrictions upon eligibility 
to the judicial office, and in spite of some unfortunate 
experiences the states in which judges are elected by the 
people believe that they have no less capable or less pure 
judges than the others. There are no signs of a reaction. 
The attacks of the opposition have become, moreover, 
much less frequent and much less fierce. 

§ 95. CoNsirruTioNAL Amendments. With the unex- 
ampled external development of the United States, there 
has gone hand in hand a progressive democratization of 
their institutions. Nevertheless, the conservative basis 
of the character of the American people, derived from 
England, has remained in force; — how much so appears 
clearly in the provisions which, in a certain sense, must be 
designated as the most important of every constitution,— 
the provisions for amending the constitution. Amend- 
ments are not made easily in any state. And in some 
states they are rendered so difficult, that it may be said 
that it is almost absolutely certain that a constitution can 



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OF THE 8EPABATE STATES. 293 

be amended only when the people, after mature reflec- 
tion, have become convinced that they wish the change 
and why they wish it. But this is noticeably true only 
when isolated amendments are in question. The guar- 
anties provided are much weaker when a general revision 
is undertaken. The reason for this is that such a general 
revision is always made by a convention elected ad hoc^ 
and such a convention, as has been already shown, rep- 
resents in a much greater degree than the legislature, ac- 
cording to the prevalent opinion, the sovereign will of 
the people, and — thus the unspoken argument proceeds — 
consequently also reflects much more the wisdom of the 
people. And this opinion is not entirely incorrect, in- 
deed, even on the latter point, for the people are wont to 
lay much more stress on the election of a convention 
than on the frequent and ever recurring legislative elec- 
tions, so that men of fitting character, ability and judg- 
ment obtain decisive influence and not persons who have 
won a position in politics simply by their dexterity in 
guiding and using the party machine. Moreover, a gen- 
eral revision of the constitution is such an important 
undertaking, that it will not be attempted if there are 
not actually urgent decisive reasons for it. And if this 
be the case, then all the important questions have long 
beforehand been thoroughly discussed, so that on the 
one hand the convention knows what public opinion 
is, and on the other the people cannot come to vote 
upon the propositions of the convention without a full 
consideration of their nature and extent. In the oonsti- 
^•utions of some of the states, indeed, the democratic 
fundamental principle, that the constitution must corre- 
spond to the will of the people, reaches rather a drastic 
expression in the provision that at fixed periods (every 
twenty years) the question must be submitted to the pea- 



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THE OONSTmrnONAL Am> €^EN£BAL LAW 

pie, whether or no there shall be a convention. As a 
rale the people must always decide this, although it is 
left to the legislature to determine whether and when the 
question shall be submitted. The certainty, indeed, of a 
decision by the people, after the expiration of a fixed 
space of time, and quite independent of the will of the 
legislature, as to whether a general revision of the funda- 
mental law shall take place, may also tend to make the 
people more inclined to give the constitution an " honest 
ferial " for a sufficient time, and to turn coldly from dem- 
agogic agitation for constant criticism and change. The 
provisions of all the constitutions as to general revisions ^ 
admit of the expectation that, if no extraordinary state 
of affairs exists, no convention will b<3 called witbout 
urgent occasion, in a lightsome spirit of innovation; 
that a convention will undertake its work in the full con- 
sciousness of its exalted responsibilities with great care- 
fulness, cool reflection and sound judgment; and, finally, 
tiiat the people in its decision upon the results of this 
work will be guided, not by momentary impulse, but by 
calm consideration of facts. Experience has sufficiently 
proven this, but it has also sometimes shown that, under 
certain circumstances, passion and demagogic agitation 
can triumph over sober thought and justice.* Without 

1 It has already been mentioned that aU the conistitutions do not 
contain detailed provisions as to the holding of oonventions. 

3 1 recall the California constitution of 1879, sometimes caUed the 
'* sand-lot constitution.*' This name was given it, because it was 
formed and adopted under the influence of an agitation which an 
ignorant demagogue of very ordinary kind brought about by his 
popular assemblages on the sand lots of San Francisco. It was a 
campaign of the lower classes of society, in the first T^aoe against the 
Chinese, and to a certain degree also against capitaL And even 
Uiough the programme of the more radical leaders was not carried 
out, they nevertheless bore away no insignifieant victory. 



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OF THB SEPARATE STATES. 295 

wishing to decide whejher the holding of conventions for 
a general revision of the constitution or the adoption of 
their propositions by the people should be made more 
■ diflBcult and how this can best be brought about, I must 
note with praise the fact that many constitutions in their 
provisions about single amendments take double and 
treble precautions against all dangers of this kind. Oa 
the other hand, it is unquestionably a disadvantage if — 
as, for example, the constitutions of Kentucky of 1850, 
and of Nebraska of 1867, provide — an amendment can 
be made only by a convention.' 

The initiative as to isolated changes and additional ar- 
ticles belongs to the legislature. The proposed amend- 
ment must, however, not only be agreed to by both 
houses, but in nearly half the states, a simple majority 
of the members-elect is not sufficient; a majority of 
three-fifths or two-thirds is required. In a minority of 
the states the proposal is then at once submitted to the 
people by its publication for a certain time in a fixed 
number of papers, and at the next general election the 
people vote for or against it. In most of the states, how- 
ever, an opportunity is given to the people to express an 
indirect opinion, because they can let the proposal influ- 
ence, so far as they see fit, their choice of members of 
the next legislature. The latter must also vote on the 
proposition, and only when it has adopted it by the re- 
quired majority is the matter submitted to the people. 
In popular votes, almost without exception, a simple ma- 
jority suffices for adoption. Exceedingly odd are the 

1 Of the obligation of submitting to the people the conclusions of 
the convention, nothing is said in these constitutions. The new Ne- 
braska constitution of 1875 allows an amendment by a three-fifths 
vote in each house of the legislature and a majority of the popular 
vote. It also requires a constitutional convention to submit its work 
to the people. 



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THE CONSTITUTIONAL AND GENERAL LAW 

provisions of the South Carolina and Alabama constitu- 
tions of 1868, and the Texas constitution of 1869, which 
put the popular vote between the decisions of the two 
legislatures.* Of course, the question comes before the 
second legislature only when the propositions of the for- 
mer have been adopted by the people. However this 
method is to be regarded on political grounds, it is never- 
theless diflBcult to make it accord with the principle of 
popular sovereignty. Several constitutions leave to legis- 
lation the task of providing for the details as to when 
and how the proposed amendments are to be submitted 
to the decision of the people. A defeated proposal, ac- 
cording to several constitutions, cannot be renewed for a 
certain time. An amendment of the Yermont constitu- 
tion, adopted in 1870, grants exclusively to the senate the 
initiative as to proposed amendments; even the senate 
can use the privilege only every tenth year; two-thirds 
of its members must be in favor of the proposal, while 
in the house of representatives a simple majority suflSces; 
in the next legislature, which must vote upon the pro- 
posal, only a majority in each house is required. The 
constitution of Delaware is entirely isolated in requiring, 
after the proposal of amendments by the legislature, their 
approval by the governor. 

§ 96. The Tax System. (A) General direct property 
taxes. Numerous and self-evident as the diflferences in 
the tax-systems of the states are in detail, there is never- 
theless a sufficient agreement in principle to make a gen- 
eral characterization of them possible. In the discussion 
of the like provisions of the federal constitution, it was 
shown that the right of taxation of the federal govern- 

1 Alabama in 1875, and Texas in 1876, each adopted a new oonstitu- 
tion. Both of these constitutions allow amendments by the vote of 
one legislature and ratification at the polls. 



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OF THE SEPARATE STATES. 297 

ment and of the several states was concuiTent, that is, 
they can levy taxes upon the same objects. Independent of 
particulars already cited and of no substantial material im- 
portance, such as the public property, the administration of 
justice, the salaries of oflBcials, etc., the only exception to 
this rule, unfavorable to the states, is imported goods. As 
the federal government alone regulates foreign commerce, 
so it alone can collect duties on imports. This one excep- 
tion, however, marks a distinction of taxation between 
the Union and the separate states which may almost be 
designated as a radical one. The federal government 
has always met its financial needs mainly by duties. In 
comparison with them, the only important taxes in ordi- 
nary times are those on tobacco and intoxicating liquors 
(whisky). Land sales, indeed, in the course of years, 
have brought in considerable sums, and also in the domain 
of internal revenue the Union has opened many more 
sources of income. But its financial system is character- 
ized as to revenue by these three factors and particularly 
in fact by the duties. Direct taxes have been levied by 
the federal government only in exceptional cases. The 
backbone of the financial administration of the separate 
states, on the other hand, is direct taxation, to which per- 
sonal and real property is liable. The general taxes are 
based on assessments made by assessors or appraisers. 
Some constitutions fix a time after which all personal 
property must be newly assessed, but this, as a rule, is left 
to legislation. Several constitutions also contain the 
provision that the valuation or assessment must corre- 
spond with the selling-price. As a rule, however, it is, as 
a matter of fact, lower. The assessment returns there- 
fore do not present an entirely correct portraiture of the 
actual prosperity of the people. If the entire Union is 
taken into view, this is manifestly impossible, because by 



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298 THE CONSTITUTIONAL AND GENERAL LAW 

law or custom the valuations in the different states aro 
made according to a more or less varying standard, quite 
independent of the fact that in spite of the express com- 
mand of the constitutions, even with the best intentions, a 
perfectly uniform assessment cannot be made. The rates 
at which the different sorts of property are taxed as well 
afi the methods of taxation vary in manifold ways, suid 
change even in the same state. The constitutions gener- 
ally limit themselves to the establishment of the principle 
that taxation shall be equal. It is, however, expressly 
stated that all property is taxable, or that all property 
shall be taxed according to its actual value, or that no 
kind of property shall be burdened with a higher tax- 
rate than any other kind, etc. Sometimes it is especially 
provided that all corporations for purposes of gain, as 
well as all investments of capital in paper securities 
of every kind, shall be taxed. Some constitutions, how- 
ever, make property taxable only when it exceeds a cer- 
tain minimum. This minimum is rather small. On the 
contrary, no state extends the '^homestead'' privilege so 
as to bar the collection of taxes due the state.^ There 

1 The view is still continually met that there is an American home- 
atead law. But in fact the federal law bearing this name relates, as 
already shown, only to the granting of a homestead of one hundred 
and sixty acres or less of the federal lands for a small entrance or 
patent fee. The homestead privilege, on the contrary, is based on 
state law or on the provisions of the state constitutions. It is there- 
fore very different in the different states and it never has the eoope 
often ascribed to it in Europe. The privilege is, in brief, this : That 
property, real and personal, up to a certain value is exempt from 
seizure or execution for certain debts, but only for certain debts. 
Taxes, purchase-money mortgages, debts for buildings erected on 
the homestead or other work done on it, are excited. What a com- 
plicated matter this is may be inferred from the fact that the work 
of S. D. Thompson, A Treatise on Homegtead and Exemption Laws, 
1878, contains over eight hundred pages. See, also, J. H. Smith, 
Law of Homesteads and Exemptions, San Francisco, lff75. 



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OF THE 8EPABATE STATES. 299 

are, however, further and more significant exceptions to 
the general taxation of property. They are obligatory ac- 
cording to some constitutions ; others only permit the legis- 
latures to make them. Cemeteries, public school build- 
ings, charitable institutions, buildings exclusively devoted 
to divine services, and public property exclusively sub- 
serving public purposes, are most frequently exempt from 
taxation. Some constitutions go much further. The 
exemption is extended to all literary and scientific insti- 
tutions, to all property serving religious purposes, to all 
public property, even that of the counties and municipal- 
ities, to clothing, furniture, tools, instruments and books 
up to a certain value, etc. 

(B) Gapitation tax. The ideal of tax legislation, in all 
modern civilized states, must be to have each individual 
bear the public burdens in the exact proportion that his 
ability to pay taxes bears to the tax-paying ability of the 
entire population. The realization of this ideal is impos- 
sible. It can be approached only by combining different 
taxes in such a way as to make their defects balance eadi 
other. An equal tax, judged from the stand-point of 
absolute justice, can never be proportionate, because 
equally valuable property of the same kind is by no 
means necessarily owned by persons equally able to pay 
taxes. Legislation, however, cannot from the nature of 
things take into consideration the particular incidence of 
taxation on a single piece of property, and the equal taxa- 
tion of equally valuable property of the same kind is 
always less inequitable than the levying of an equal 
direct tax upon all individuals merely as parts of the 
population. It is only here and there that this point has 
been given such attention that the levying of such a tax 
has been unconditionally prohibited. Some constitu- 
tions — but a very small number — direct its levy. About 



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800 THE CONSTITUTIONAL AND GENERAL LAW 

half the constitutions do not touch the question at all 
and give the legislatures full and free play. The rest 
occupy a middle ground, corresponding with the public 
opinion or the actual situation of affairs in those states 
' the constitutions of which are silent on the subject The 
legislatures are permitted to levy a poll or capitation 
tax, but it is admitted that in general such a tax is 
grievous and oppressive, and therefore the right is given 
very narrow limits. The maximum rate allowable is 
almost always fixed; and this — considering American 
monetary conditions — is always a small one, usually $1 or 
$1.50. The tax is further restricted to male inhabitants 
or citizens of at least twenty-one years of age. And, 
finally, the revenue is generally made applicable to pre- 
scribed purposes, — in fact, as a rule, exclusively to the 
public schools, but occasionally also to charitable institu- 
tions. This prescription of purposes shows why the tax 
is regarded as admissible, although its principle is gener- 
ally condemned. The poorer classes are most interested 
in a general free common school system, and the less 
they have to pay direct property taxes, the more equita- 
ble, yes, the more desirable, it is that they shall contribute 
something to the maintenance of these common schools. 
For it is even more important in democratic free states 
than in any other to keep alive in the consciousness of 
every citizen with full political rights, by making him 
pay some tax, that rights become privileges if not counter- 
poised by corresponding duties. The weight of these con- 
siderations in causing the levy of capitation taxes appears 
quite clearly where the right of voting is made depend- 
ent on the payment of a poll tax. 

(C) Other taxes. Income taxes are mentioned only in a 
very few constitutions. It does not follow that they are 
not allowable in other states, but as the constitutions for 



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OF THE SEPARATE STATES. 801 

the most part contain rather exhaustive provisions for tax 
legislation, this indicates that this method of taxation 
does not enjoy in the United States the favor it is more 
and more receiving among European statesmen and land- 
lords. Indeed, it will not be entirely unjustifiable if the 
question is decided the other way in America. When 
the economic and all other relations have not yet attained 
a certain stability a general income tax causes many sorts 
of difficulties and inconveniences, which exist either not 
at all or in a very much more limited degree in relation 
to other taxes. Americans are aware that in many re- 
spects incomes are the best measures of taxation. They 
know, too, how the revenues are increased if taxation 
falls not only upon property, but also income. Both 
reasons will probably bring about the introduction of the 
income tax, sooner or later, in all the states of the Union ; 
but many a state will consent to this only when the pub- 
lic needs cannot be met without a considerable increase 
of the ordinary taxes. However this may be, in fact, the 
different kinds of " specific taxes," next to the general 
direct property tax, play at present the most important 
part in the financial system of the several states. Among 
these specific taxes, the business or occupation taxes de- 
serve the first mention. The Louisiana constitution of 
1868 directly states that these are intended as income 
taxes.* Even where this is not expressly stated, the con- 
stitutions sometimes take care that the taxes shall not be 
the same for all the different trades, but shall bear a cer- 
tain proportion to the extent or proceeds of the business 

1 After the general authorization to levy such taxes, this clause fol- 
lows : " All tax on income shall be pro rata on the amount of income 
or business done." The authority to levy an income tax is not un- 
bounded. It is granted, but only as to "all persons pursuing any 
occupation, trade or calling." Title VL, art. 118. 



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802 THE CONSTITUTIONAL AND GENERAL LAW 

carried on. When, for instance, the Alabama constitor 
tion of 1868 obliges the legislature to impose a special 
tax upon all railroads, insurance and banking companies, 
etc., for the benefit of the school fund, it is difficult to 
assume that it intends to tax a little local railroad a few 
miles long as much as railroads which might be regarded 
as the arteries of trade. And this is true even if laws 
based upon another interpretation of the paragraph can- 
not be declared certainly unconstitutional. The Illinois 
constitution of 1870, however, enumerates, in immediate 
connection with businesses of the kind just mentioned, 
hawkers, hucksters, jugglers, grocers, hotel and saloon 
keepers, etc. This is difficult to harmonize with the views 
stated if it be not assumed that the framers of the constitu- 
tion intended to leave it to the discretion of the legislature 
in what cases the specific tax shall be a fixed one, and in 
what cases the tax shall be determined by the extent of 
the business. The latter is never the case in a license 
tax. The Virginia constitution of 1870 calls the specific 
taxes which are to be levied licenses. There is, there- 
fore, no doubt that under it only the particularly ennmer- 
ated occupations can be burdened with a specific tax.' 
In turn the question might be raised whether this is also 
true in cases where only the expression " to tax " is used. 
For it may be disputed whether licenses can be regarded 
as taxes in the strict sense of the word. As, however, in 
the cases of hawkers, peddlers, jugglers, etc., only licenses 
can be intended, this argument would be somewhat 
forced. But, although it is regarded as inadmissible, 
naturally the importance of specific taxes as a source of 
revenue is always more or less impaired by such an enu- 

1 The list, indeed, oontains a dause giving to the legislatore tbe 
widest scope. It says, in conclusion : ** Aad all other business which 
cannot be reached by the ad valorem syBtem." 



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OF THE SEPASATB STATES. 

meration.^ In order to avoid this, other constitutions, 
such, for instance, as that of North Carolina of 1868, have 
empowered the legislature to tax all trades, professions 
and franchises. This power, to ray knowledge, has hith- 
erto never been carried out in its full extent in any state. 
I do not believe that any state has ever overstepped or 
even reached the limits which the Texas constitution of 
1879 fixed by adding to the general formula of authori- 
zation the clause that, by " occupation," agriculture and 
" mechanical pursuits " should not be understood. On 
the other hand, no constitution which mentions specific 
taxes has drawn such narrow limits to them as the Ar- 
kansas constitution of 1868, which commands the legisla- 
ture " to tax all privileges, pursuits and occupations that 
are of no real use to society," and forbids the taxation of 
all others. How the laws of Arkansas have illustrated 
this remarkable provision in detail I am unable to say. 
I have treated this whole question in connection with the 
constitutions, partly because it seemed to possess not a 
little interest jp^ ae^ partly because it sufficiently appears 
from the constitutional provisions cited how different the 
conditions of the states are in this respect, while the 

1 The constitution of Illinois further sets forth: '' The specification 
of the objects and subjects of taxation shall not deprive the general 
assembly of the power to require other subjects or objects to be taxed, 
in such manner as may be consistent with the principles of taxation 
fixed in this constitution." Even if the states, in applying the doctrine 
that constitutions should establish only the principles of tax-legisla- 
tion, have not kept within the same limits, yet this doctrine, as a 
matter of fact, forms the foundation of the provisions in question in 
all the constitutions. So the principle already stated applies here, > 
that the legislatures may do whatever they ai-e not forbidden to do. 
It cannot be concluded, for example, because many constitutions con- 
tain no special provisions relating to specific taxes, that the actual sys- 
tems under them must be substantiaUy different from those in the 
states with constitutioiis which do contain such provisioiis. J 



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304 THE OONSTirUTIONAL AND QBNBSAL LA.W 

fundamental oharacter of their tax systems is one and the 
same. 

§ 97. School System.^ Advomcement thereof hy theFedr 
eral Oovemment. The democratic federal republic's ca- 
pacity for existence has not diminished, but has rather 
greatly increased, although in three generations the nar- 
row settlements along the coast of the thirteen Atlantic 
states have developed into the giant nation extending from 
ocean to ocean, and the population has increased more thaa 
fourteen-fold. This is in great part due to the fact that 
close upon the heel of the irrepressible pioneer, penetrating 
the western wilderness, came the school The federal gov- 
ernment was no slight contributor to the possibility of this. 
Neither the articles of confederation nor the constitution 
of 1789 granted the central power any authority what- 
ever in regard to a system of instruction in the states, but 
early in the day it saw that the care and development of 
the school system was a national interest of vital impor- 
tance. And it found ways and means to aid it greatly 
without becoming guilty of the slightest usurpation. The 
old congress deserves the renown of having, at a time 
when the overwhelming centrifugal tendency had already 
practically deprived it of all real power, taken the path 
which the federal government has since steadily trod, to 
its honor and to the good of the country. Even in the 
act of 1785, organizing the territory lying northwest of 
the Ohio, the sixteenth section — a square mile — of every 
township was set aside for the support of common schools. 
In the famous " ordinance of 1787," the definitive act of 
organization of the Northwest Territory, this provision 
was renewed and the grant to each state formed out of 
the territory of two whole townships, "for a university," 

IF. Burke: Law of Public Schools, N. Y., 1880. 



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OF THE 8EPABATE STATES. 805 

was added.^ A law of September 4, 1841, granted a 
number of states five hundred thousand acres apiece (in- 
clusive of the grants made earlier), and provided that 
every new state should receive a like grant. " Internal 
improvements " were usually the nominal object of thi« 
gift, but as a matter of fact, a large amount of the pro- 
ceeds went to the schools. With the law of August 14, 
1848, for the organization of the territory of Oregon, con- 
gress began to give to the school-fund of the new terri- 
tories the thirty-sixth as well as the sixteenth section of 
each township. In the midst of the civil war, July 2, 
1862, congress passed a law giving to each state land 
enough to endow at least one " college," in which " such 
branches of learning as are related to agriculture and the 
mechanic arts " should be especially taught. The size of 
the gift was made dependent on the population. It was 
at least thirty thousand acres for each senator and repre- 
sentative of the state, under the census of 1860. Besides 
this, the school-funds of certain states got a share of the 
surplus in the federal treasury distributed in 1836 — some 
$15,000,000 — and also part of the proceeds of the sale of 
more than sixty -two million acres of " swamp and over- 
flowed lands," donated the states by the federal govern- 
ment in 1849, 1850 and 1860. 

General Characterization. The original states of the 
TTnion have thus shared in the land grants for schooFs 
only to a relatively small degree. However great these 
grants have been, of course they could not, even in the 
new states, be more than a contribution towards the 
amount needed for the system of instruction. Even 
in these new states, most of the money needed must be 

1 G. W. Knight, History and Management of Federal Land OrantB 
in the Northwest Territory, N. Y.» 1885; in the papers of the Amflr- 
ioan Historioal Aeeodation. 
20 



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806 THE CONSTITUTIONAL AND GENERAL LAW 

raised by taxes, partly state and partly local. As to 
both kinds of school-taxes, the regulations of the thirty- 
eight states differ widely in both form and substance. 
The system of instruction is by no means in the same 
stage of development in all the states, and divergent views 
prevail on the question as to how far the care of popular 
education ought to be, or can be, recognized as an im- 
mediate task of the state. And, therefore, the size of the 
school-budget — whether that of the state alone or that 
of the state and the municipalities together — varies 
greatly jp^r capita. As a rule the former slave-states, es- 
pecially the planter-states, are more or less in arrear in this 
respect. If we but consider that at the outbreak of the 
civil war part of these states had no general common 
school system and that the slave-children w^ere not allowed 
to be educated, we must cordially recognize the progress 
they have made, — and made despite their complete eco- 
nomic ruin and despite the radical social revolution of the 
last twenty years. Some of them, indeed, have gone so far 
as to establish in their constitutions the principle of com- 
pulsory attendance at school or rather of compulsory edu- 
cation, — a principle not yet adopted by many northern 
and western states. The conclusion must not be drawn, 
however, from the establishment of the principle, that in 
these particular states all children now enjoy instruction. 
In the southern states, the actual condition of affairs makes 
it in many ways impossible to give all children the oppor- 
tunity of an education, much less to compel them to take 
it. Compulsory education, moreover, has not succeeded 
hitherto even where such an opportunity has been oflfered 
every child. This is due in a great degree to the fact 
that public opinion has not yet declared itself in favor of 
compulsory education as emphatically as it has demanded 
for many years that the state, in connection with the 



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OF THE SEPABATB STATES. 307 

local authorities, should see to it that every child had the 
chauce of receiving a common school education, free of 
cost. 

Common Schools. The demand of public opinion on 
the whole does not extend further than these, although 
there are everywhere public free schools of a higher 
grade. Some of them are supported by the municipali- 
ties ; some of them by a municipality and the state to- 
gether. The expression "common schools" as a rule 
means only the elementary or primary schools. Common 
schools of a higher grade are called grammar or high 
schools. Nevertheless there is no ''^American common 
school sj^stem," although Americans themselves very fre- 
quently use this expression. Not only are there different 
names in the different states, but the same names some- 
times mean more or less different things. Each state, 
however, has its common school system, bearing here or 
there its special stamp. A general characterization, which 
should give a very correct picture of the organization of 
the school system of each state, is therefore impossible. 
The following statements indicate only what seems to 
emerge from the multiplicity of details as a general 
type — modified in this or that way, sometimes more and 
sometimes less. 

Organization of the School System. The state does 
not support the common schools, but it contributes a con- 
siderable part of the cost of their support. The means 
placed by the state at the disposal of the public schools — 
the proceeds of taxes directly or indirectly levied for 
school purposes and the interest and other proceeds of 
the school fund — are distributed according to fixed, but 
not always the same, rules. In general the distribution is 
based either wholly or in part upon the number of school 
children. The rich communities, therefore, have to pay 



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308 THE CONSTITUTIONAL AND GENERAL LAW 

much more in taxes to the school fund of the state than 
they receive from it. They must not only bear the ex- 
penses of their own schools, but they must also help to 
support the schools of the poorer communities. All local 
boards, however, must raise part of the cost of their 
schools by local taxation. In fact, they are not always 
left free to decide how heavil}'^ they will burden them- 
selves for this purpose. No maximum is set, but the law 
prescribes a minimum, by fixing what proportion the local 
contribution shall bear to that of the state. As far as 
spending the moneys is concerned, the local boards have 
a pretty free hand. As the state does not fully support 
the common schools, it does not claim their sole manage- 
ment. It takes in hand the general direction and super- 
intendence, but does not withdraw the school system 
from the domain of self-o^overnment. The hiorhest school 
authority in most states is a board of education. Its 
members are sometimes elected by the people or the leg- 
islature; sometimes appointed by the governor; some- 
times they are certain officials who ex officio make up the 
board; sometimes they are chosen by a combination, in 
one way or another, of the different methods. The im- 
mediate head of the system of education is a single of- 
ficial, generally called superintendent or commissioner of 
public instruction. He also is elected in the one or the 
other way or is appointed by the governor. He is al- 
ways a member of the board where a board exists. Be- 
sides this, there are commissioners. They are either state 
or county officials, but in either case are usually elected 
by the people. The immediate management of the 
schools is left, however, to the local school boards, school 
commissioners or trustees. These are generally elected 
by the voting population of the community. They en- 
gage and discharge the teachers. The unit in the organ- 



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OF THE SBFABATB BTAT£8. 809 

ization of the school system is the " school district " or 
the township. The district system has lost ground of 
late as against the township system, because experience 
has shown that decentralization has many dubious results 
if it passes beyond certain limits. With the development 
of the system of public instruction the tendency towards 
somewhat greater centralization has gone hand in hand. 
In fact, the improvement of the system and the growth 
of the state's control and direction are to no small extent 
exactly identical. 

Msclusion of Heliffioiis Instruction in the Common 
/Schools. No state gives the churches any footing what- 
ever in the common schools. Every church and every 
congregation is left to take such care as it sees fit 
of the religious instruction of the children belonging to 
it. Such instruction is usually given in the Sunday 
schools. These are entirely independent of the state as 
well as of the community. Eeligious exercises in the 
common schools are restricted to the reading of a chapter 
in the Bible. Even this has been done away with here 
and there, because the Catholics claimed that they were 
wronged by the use of a Protestant translation of the 
Bible; the Jews protested against the use of the New 
Testament, and the Freethinkers objected to everything 
which professed to be the word of God and divine revela- 
tion. These claims, protests and objections have been 
recognized without reservation as just by many positive 
Christians. Some famous Protestant clergymen were 
among the earliest and most earnest advocates of the 
doctrine that religion, so far as it took the shape of 
dogma, was to be absolutely excluded from the common 
schools. The most vigorous impetus given to the attack 
against the former practice of beginning the school ses- 
sion with more or less prolonged devotional exercises was 



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310 THE 00N8TITUTI0NAL AND GENERAL LAW 

due to the Catholic clergy. Hitherto, however, the re- 
sults have been diametrically opposed to their real views. 
They complained of a Protestant translation of the Bible, 
but when Bible reading ceased they lamented still more 
the banishment of God from the schools, and demanded 
that the Catholics be given their share of the school 
funds so that they could care for the instruction of their 
children in the way demanded by their consciences and 
their religious convictions.^ So far they have been un- 
able to carry this through anywhere. Its ultimate con- 
sequences would be the distribution of the whole school 
fund among the diflFerent churches and the replacing of 
the complete secularization of the common schools with 
its exact opposite. But the battle over this question — a 
question which reaches the deepest roots of popular gov- 
ernment in America — is by no means ended.^ 

Normal Schools, It was only in relatively recent times 
that the st-ates began to make any effort to educate 
capable common school teachers. These efforts were in- 
cidentally caused by Dr. Julius, whom the Prussian gov- 
ernment had sent to the United States to study the prison 
system. Dr. Charles Brooks, a clergyman of Massachu- 

1 For one of the most interesting and significant episodes of this 
struggle see my Coiistitutional History, TV., 91. 

Sflresident Grant, in his message of December 7, 1875, recommended 
that a constitutional amendment should be submitted to the states for 
ratification, *' making it the duty of each of the several states to es- 
tablish and forever maintain f uU public schools, adequate to the edu- 
cation of all the children in rudimentary branches, within their 
respective limits, irrespective of sex, color, birth-place or religion; 
forbidding the teaching in said schools of religious, atheistic or pagan 
tenets, and prohibiting the granting of any school fund or school 
taxes, or any part thereof, either by legislative, municipal or other 
authority, for the benefit or in aid, directly or indirectly, of any re- 
ligious sect or denomination.*' Congress did not act upon the recom- 
mendation. 



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OF THE 8EPABATE STATES. 311 

setts, was so mach interested in Dr. Juliuses statements 
about the Prussian teachers' seminaries that he 'forth with 
made himself thoroughly acquainted with these insti- 
tutes, and after his return to America began a successful 
agitation in Massachusetts for their imitation there. By 
and by other states followed the example of Massachu- 
setts, and now every state has a greater or less number 
of teachers' seminaries. They are usually somewhat 
vaguely called normal schools. Only a very small part 
of them are real state institutions. Most of them depend 
upon the municipalities. These have displayed a splen- 
did activity and a cheerful self-sacrifice in this respect, as 
v^rell as in regard to the entire school system. Although 
the number of these institutes grows steadily and rap- 
idly, yet they by no means suffice to supply the great 
demand for teachers of the lower grades. Under the 
blessed working of competitive examination, however, 
the average teacher has nevertheless become much more 
capable than formerly, when " school-keeping " was the 
best means poor half-grown youths had to earn money 
enough to enter upon whatever career their ambition 
dictated. The normal schools train not only male but 
female teachers.^ 

High Schools^ etc. The extent of the support given 
by the states to high schools, and also to academies and 
colleges, is very varied. The organization as well as the 
work of these schools differ so much that they often have 
nothing in common except the name. During the sev- 
enties — possibly on account of the hard times — a cur- 
rent of public opinion against the expensive participation 
of the state in fostering the higher education seemed to 

1 The abeolate as well as the relative number of female teachers is 
far greater in the United States than in any European nation what- 
ever. 



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THE OOKSTirunONAL AND OEKBBAL LAW 

gain breadth and depth. The money taken from the 
mass of the people — so the argument ran - should be 
used only in such a way as to be of direct advantage to 
the whole people. 

Universities, In most of the states a state institution 
bears the name of university. But it must not be inferred 
from the name that the institution corresponds with 
what is understood in Europe by a university. And even 
among themselves they differ so much that a general 
characterization is practically impossible. Only thus 
much may be said, that they are throughout a mixture of 
the German gymndsia^ realsckule of a high grade, indus- 
trial schools of different kinds, and university, but that 
the mixture and combination differ materially in the dif- 
ferent cases. Thus, for instance, some of the southern 
states, which first considered the foundation of a univer- 
sity after the close of the war, and some of the younger 
western states, have contented themselves from the be- 
ginning with a very modest progi*amme, whereas the 
state university of Michigan, at Ann Arbor, in the num- 
ber of subjects of instruction, as well as in the work 
done, is among the foremost institutions of the Union. 
Theology is excluded from all state universities. The 
separate religious denominations must care for the edu- 
cation of the clergy, as such. The state does not concern 
itself in any way as to whether they do so or how they 
do so.^ 

I In 1883 there were oDe hundred and forty-five theological semi- 
naries, with four thousand nine hundred and twenty-one students. 
The Catholic church led them all with twenty-one seminaries and 
one thousand one hundred and four students. Next came J;he Bap- 
tists, with the same number of seminaries, but only eight hundred 
and ninety-nine students. In all, twenty-five different religious de- 
nominations support seminaries. It is evident from this that a dis- 
tribution of the school fund among the denominations is simply 



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OF THE 8BPABATB STATES. 813 

Although they do not come within the theme of gen- 
eral law, the private institutions must be briefly men- 
tioned, because they are in the strictest sense of the word 
an essential integral part of the system of instruction. 
The most noted institutions of learning of the highest 
grade are almost wholly private institutions, in this sense, 
that they are aided neither by the state nor by the com- 
munities. Their property comes from legacies and gifts. 
The foundation of their scheme of instruction is the col- 
legiate department, in which the lower divisions corre- 
spond to the higher classes of our gymnasia or reaZschule, 
and even the highest do not go far beyond these. Where 
other than academic studies are pursued, it is usual to 
organize separate schools — medical school, law school, 
etc., which nevertheless form an integral part of the whole 
institution. If the institution is of a religious character, 
it occasionally has connected with it a theological serai- 
nary. The large majority of the colleges of the second 
and third class as well as of the academies are private 
institutions in the sense stated. Many of the grammar 
and high schools are due to private benevolence. Indi- 
viduals spend year after year immense sums for educa- 
tional purposes. In 1872, the legacies and gifts ran up 
to over $11,000,000. This has also its obverse side. The 
resources of education are not concentrated ; the condi- 
tions of the donors often prevent the most expedient use 
of the money given; the arrangements are too dissimilar; 
and the results are too disproportionate and often very 
unsatisfactory.^ Apart from the common schools, the 

iinpossible. If the Catholic church ever carries through its demand, 
it can do so only by getting a special privilege for itself. 

1 This is evident enough from the fact that in 1882 there were no 
less than three hundred and sixty-five " universities ** and " colleges ** 
in the United States. 



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314 THE OONSTITTTTIONAL AND GBNEBAL LAW 

system of instruction is in some ways almost chaotic. 
As far as colleges and high schools are concerned, the 
stage of development of the central European states has 
not been reached.^ 

§ 98. Relations of Church and State.^ " It belongs 
to American liberty to separate entirely the institution 
which has for it object the support and diffusion of re- 
ligion from the political government." • The constitutions 
of all the states proclaim this principle in one form or an- 
other, and they put its chief consequences in the shape 
of express prohibitions. The American principle is not 
general toleration, but absolute religious freedom. This, 
according to American ideas, involves the complete with- 
drawal of religio-ecclesiastical relations as such from the 
sphere of action of the state and of political organi- 
zations of lower grade. The Americans are mistaken in 
their frequent assertion that this principle is carried out 
to its last consequences in all the states, but the differences 
are few and as a rule of no practical importance. 

In all the states, the constitutions forbid the establish- 
ment of a state church or any distinction in favor of any 
religious denomination. If any advantage whatever were 
given one, this would be an injury to the others, and any 
injury suffered on account of religious convictions is op- 

1 Compare, besides the annual reports of the bureau of education 
and Barnard's American Journal of Education: Troschel, Volk»- 
charakter und Bildungsanstalten der Nordamerikaner, 1867; Rigg, 
National Education, 1873; A Statement of the Theory of Education 
in the United States of Americay 1874; F. Adams, T?ie Free School 
System of the United States, 1875; Gilman, Education in America, 
1776-1876, in the North American Review, 1876. 

2 See Cooley, Const, Lim,, 467-478; R. H. Tyler, American Ecclesi- 
astical Law, Albany, 1866; F. Vinton, American Canon Law, N. Y., 
1870; W. Strong, Relations of Civil Law to Church Polity, N. Y., 
1875; S. B. Smith, Ecclesiastical Law, 2d ed., N. Y., 187a 

• Lieber, On Civil Liberty and Setf-Oovemm^nt, 09, 



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OF THE SBPARATE STATES. 315 

posed to the principle of absolute religious freedom. If 
this is true in relation to religious organizations, it must 
manifestly also be true as to all individuals. States are 
therefore unfaithful to this principle if their constitutions 
make the right to hold certain or all public offices de- 
pendent upon faith in a higher being, in a future life, etc. 
Some state constitutions do this. This inconsequence is 
either not recognized or else is regarded as justifiable, for, 
as far as the Anglo-Americans are concerned, there is 
very much truth in Kapp's assertion that religious liberty 
is understood by the great majority to mean *' that every 
one has indeed the liberty to profess any religion but not 
the right to acknowledge no religion." ^ All such pro- 
visions, however, are constantly and in an increasing 
ratio disappearing from the state constitutions. 

Taxation for Religious Purposes is forbidden. Such 
taxes cannot be levied by the townships and counties any 
more than by the state.^ Religion is an entirely private 
affair, and the imposition of public burdens for private 
affairs is inadmissible. No one can be compelled to con- 
tribute to the cost of satisfying the religious wants of 
somebody else. Whoever associates himself with others 
for such purposes and so voluntarily assumes material 

1 DcL8 VerhdJtnisa ron Staat und Kirche in der Union, Aus und 
aber Amerikay II., 48. 

2 For an exception, see Cooley, Const. Limits 468, note 1. I give 
the provision of the Illinois constitution on this point verbatim, 
because it may be regarded as typical: ''Neither the general as- 
sembly, nor any county, city, town, township, school district or other 
public coloration, shall ever make any appropriation, or pay from 
any pubUc fund whatever anything, in aid of any church or sectaiian 
purpose, or to help support or sustain any school, academy, seminary, 
coUege, university or other literary or scientific institution controlled 
bj»any church or sectarian denomination whatever; nor shall any 
grant or donation of land, money or other personal property ever be 
made by the state or any such public corporation to any church or 
for any sectarian purpose." Art. VIII., sec. 1, § 8. 



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816 THE OOI78TXTUTIONAL AMD OENBSAL LAW 

obligations is nevertheless, of course, bound to meet these 
obligations. Controversies arising from this may be de- 
cided by the ordinary courts, but they can never have a 
general law character. 

The states are forbidden to compel participation in any 
religious exercises or usages whatsoever. A member of 
a religious congregation is so solely because he wishes to 
be, and he can cease to be so for whatever reason and 
whenever he pleases. On the other hand, the state has 
no right to direct religious denominations whom they 
shall admit to membership, why they shall exclude from 
membership, how they shall arrange their church rules, 
when and how they shall impose ecclesiastical punish- 
ments, etc. It is only when they invade the legal righte 
of the citizen that the person injured can seek the pro- 
tection of the courts. The churches, as religious com- 
munities, have unlimited self-government, but they can 
nevfer, by appealing to their articles of faith or church 
regulations, justify the least violation of what the state 
recognizes as a right. Without detriment to their abso- 
lute autonomy, they are as absolutely subject to the law 
as any stock company or social club. 

The Free Exercise of Religion cannot be hindered by 
the states. The Chinaman cannot be troubled in his 
temple of idolatry any more than the Catholic archbishop 
in his cathedral. No one is to be prevented from making 
the craziest religion his own and living up to it in accord- 
ance with the dictates of his conscience. But this holds 
good only so far as he does not thus come into conflict with 
the laws. The laws, in fact, do not affect religion, but 
always take care that no one, in the name of religion, 
shall actually oppose the requirements which the state, 
as a moral, civilized society, may and must^make.^ He 

1 The Illinois constitution proyides : '* But the liberty of oonsdenoe 
hereby secured shall not be construed to • • . excuse acts of 



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OF THE 8EPAKATB STATES. 317 

who does this encroaches upon the legal rights of others, 
and indeed in this case upon the legal rights of the com- 
munity, whereas the constitutional guarantee of religious 
freedom is to him only a guarantee that on that question 
neither the state nor any one else shall be permitted to 
encroach upon his legal rights. 

The Free Expression and Defense of Eelioioits Opin- 
ions by word or pen cannot be restricted by the state. This 
right, also, is subject to the restrictions stated in the pre- 
ceding section. No constitution forbids the legislature 
to prevent the circulation of immoral writings injurious 
to public morals. In some states this is made its express 
duty. This right and this duty cannot, however, be set 
aside because lasciviousness presents herself in the dra- 
pery of religious conviction. The exercise of the right is 
also subject to the further restriction that it shall not be 
so abused as to violate the legal right of others to follow 
their convictions. 

The fundamental principles are clear, but it is easy to 
see that their application to concrete cases must involve 
many and many kinds of difficulties. Whether the great 
problem of the relations of church and state has been 
more satisfactorily solved in the United States, by com- 
plete separation, than it has been in- European states, by 
more or less of alliance, is not a matter of enquiry here. 
But a presentation of American general law must point 
out the fact that the American solution does not, as most 
Americans believe and assert, absolutely exclude all mis- 
understandings, etc., between these two highest points, 
of civilization. And even were that the case, yet the 
facts to be stated hereafter show even more clearly than 
those already cited that the highly complex development 

licentioosness, or justify practices inconsistent with the peace or 
niety ot the state." Art. H., sec. 1, g a 

. CA UFO^!^^^ Digitized by GoOglC 



318 THE CONSTITUTIONAL AND GENERAL LAW 

of the relation between church and state in Europe — a 
development which has gone on a thousand years or 
more — makes the adoption of the American theory in 
the old world utterly impossible. 

The co-existence of absolute legal dominion over the 
churches, and of their complete autonomy as organized 
religious societies, is made possible by the fact that the 
state does not know them as self-contained, complex 
powers at all. Legislation concerns itself only with in- 
dividual congregations, and even with them not as com- 
munities of one faith, but only as corporations which, 
under the laws, can acquire property, use it and manage 
it. The state does not, however, ignore the two impor- 
tant facts that these are corporations for religious pur- 
poses, and that every congregation belongs to a sect 
Church rules, church laws, even doctrines of faith, can 
be enforced by the courts, and may control judicial de- 
cisions. The courts decide only questions of law, bat 
these may depend upon a church rule, etc. Without re- 
gard to the reasonableness, the justice, the worth or the 
unworthiness of the articles of faith or of the ordinances 
of the church, they are treated by the courts as facts 
from which legal consequences may arise for those who 
have become subject to them by voluntarily becoming 
members of a church. The church authorities can bring 
no questions of a civil nature before their forum, and the 
state never lends them its strong arm except in questions 
of civil rights, such as may arise under the rules of a club 
as well as under the ordinances of a church.* In other 

1 The leading principles are plainly and pointedly set forth by J. P. 
Thompson, Kirche und Stoat in den Vereinigten Staaten von Amerikcu 
He says : 

** Under the laws of the United States, and of the several states of 
the Union, each church is at liberty to organize itself according to 



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OF THE SEPAKATB STATES. 319 

cases, however, thfe courts have recognized the right of 
an incorporated congregation to retain their church prop- 
erty, although they had changed their faith. 

From the political point of view, the opposite side of 
the question is the more important. The state takes 
account of both these facts, by seeking to shape its legis- 

its own model, to frame its own laws, to raise its revenue in its own 
way, and to administer its own discipline. ' The broad principle is 
that a church is a voluntary association ; and its constitution, laws 
and canons are stipulations between the parties, defining their duties 
and obligations. The civil rights of the member are still protected 
by the civil tribunals ; but civil courts will not interfere to prevent 
an investigation before an ecclesiastical tribunal of a voluntary re- 
ligious association when proceeding according to its constitution, 
canons or rules, and when the subject-matter or person is within its 
jurisdiction. 

** Where it appears that a local church and the rector thereof are 
members of, and under the supervision and control of, a general and 
superior church organization, to whose faith and discipline they have 
voluntarily attached themselves, those who continue to arlhere to the 
faith and discipline of the general church are the beneficiaries for 
whose use the trustees hold the church property, although they are 
the minority of the local church organization. 

" Where the proper ecclesiastical tribunals have obtained jurisdic- 
tion, and have tried and passed sentence of deposition upon an al- 
leged offender, civil courts not only recognize the validity of, but give 
effect to, the decisions of the church courts. 

''In all matters of religious faith and practice, the ecclesiastical 
courts, provided they have obtained jurisdiction, are as entirely inde- 
pendent of the civil tribunals as the latter are of the former upon all 
questions relating to property interests. 

** Neither will the courts, in the absence of acts of incorporation 
which cliange the common law, permit a majority of the members 
of a church which is itself connected with and subject to the juris- 
diction and government of a superior church judicatory to secede 
from the denomination to which they have voluntarily attached 
themselves, and take with them the church property. Such an act 
is regarded in law as a perversion of the trust; and a court of equity 
wiU reach forth its strong arm, and prevent it. The holders of the 
legal title are regarded in a court of equity as holding it in trust for 



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320 THE CONSTITUTIONAL AND OENEBAL LAW 

lation 80 that the churches cannot easily become a power 
dangerous to it. The greatest safeguard lies in this, that 
the whole church can never be incorporated in a state. 
Only a single congregation can be. It may therefore be 
said that in a certain sense the legal idea of the church 
is inseparable from that of a particular building devoted 
to divine worship. The mere permanent union of per- 
sons who think alike on religion does not form a church. 
The legal formation of a church involves the creation of 
a corporation, of a '* congregation," which obtains legal 
existence by this incorporation. The congregation em- 
braces all those who, by the acceptance of their contri- 
butions towards the common costs, have been admitted in 
a certain way as business partners. What a single con- 
gregation calls the '' church " is the closer union of those 
whose lives show a livelier participation in, and fuller 
resignation to, the common ideal interests. The church 
as such legally exists only as a congregation.^ The 
method and conditions of incorporation vary in the dif- 
ferent states. The congregation is always represented in 
its relations to the state and the outer world by a board 
of trustees which must consist in part of laymen. This 
highly important provision may, indeed, be stripped of 
ail significance. In New York the Catholic church has 
been able to arrange matters so that the trustees always 

the malDtenance of the faith and worship of the founders of the or- 
ganization ; and an j diversion of it into another use is so far a breach 
of trust as to demand the interposition of the oourt This position 
is sustained by many cases, English and American." See, also, Chase 
et cU. vs, Cheney, 58 lU., 509. In other cases, however, the ooarte 
have acknowledged the right of incorporated churches to retain their 
church property notwithstanding a change of faith. J. P. Thompsoiit 
Kirche und Staat in den Ver. St, von Amerika, 78 et scg. 

1 The spiritual head of the congregation is the minister. He is 
also the pastor of the church. 



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OF THE 8BPARATE STATES. 321 

consist of the archbishop, the bishop of the diocese, the 
vicar-general, the pastor of the church, and two of the 
three laymen first elected by the church. The two lay- 
men are simply a thin veil to hide the fact that the state 
has struck its flag to the church. 

The ecclesiastical authorities as such have no power 
whatever to administer the church property. Even the 
trustees are subject to certain limitations in this respect. 
Far more important, however, is the fact that the very 
right of the congregation to acquire property is limited 
to a certain extent. These limitations affect not only 
the amount acquired but the method of acquisition. The 
right to acquire real estate is particularly limited. Yet 
these provisions often exist only on paper. Sometimes it 
is not easy to conceal a violation of them ; sometimes the 
boards make no attempt to conceal it. ^KTevertheless, the 
principles of these laws in regulation of ecclesiastical re- 
lations provide the means for energetic public action, if a 
church filled with hierarchical tendencies should ever 
become possessed of such material power that public opin- 
ion began to perceive a danger in it. 

THE ORGANS OF SELF-GOVERNMENT, i 
§ 99. Ik Gknebai.. While in Europe the eighteenth 
century was characterized by excessive centralization, 
and it is only in the nineteenth that the principles of self- 
government have been toilsomely and very gradually 
brought into play against the principle of the state's uni- 
versal control, the development of the United States has 
taken exactly the opposite course. Here the most extreme 
deoentralization was the original basis. The history of 
the separate states naturally contains nothing which offers 

1 J. N. Pomeroy, Municipal Law, N. Y., 1864; J, F. DiUon, Munio- 
ipal Corporations, 8d ed., 2 vols., Boston, 1881. 
21 



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322 THE 00N8TITDTI0NAL AND OENE&AL LAW 

any analogy to the bitter experiences and hard struggles, 
through which the federal government bit by bit won the 
power imperiously demanded by the vital interests of the 
community, and indeed absolutely necessary for the per- 
petuation of the Union. The factors of the state govern- 
ment depend so immediately upon the people that there 
can scarcely be protracted and serious conflicts between 
government and people. At most, there may be diflfer- 
ences between the larger cities and the legislatures; for 
it is not inconceivable that the former may think their 
special interests are systematically neglected or badly 
treated by the majority of the country representatives, 
either from ignorance or, indeed, from lack of good wilL 
Cities like New York, Philadelphia, Boston, Chicago, St. 
Louis, are too populous and too powerful to allow such 
an opposition of opinions and interests to win a chronic 
character, without a struggle. In general, however, 
centralization can never go further in the single states 
than public opinion demands or at least permits. And, 
on the whole, public opinion has thus far held fast to the 
principle that all local affairs shall as far «as possible be 
left to local authorities. The constitutional-law authority 
of the legislatures is great enough to cut down local gov- 
ernment at one stroke to very modest proportions, for 
individual rights are never the basis of local government 
Considerations of expediency lead the state to create 
municipal organizations of various kinds and grades; and 
these have only such powers as the state grants them. 
The powers are either expressly granted or implied in 
those expressly granted, because necessary in order to 
execute the latter. The courts also recognize to a certain 
extent a law of custom, because as a matter of fact cer- 
tain powers are rooted so ineradicably in custom, that 
they are frequently not expressly granted simply because 



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OF THB 8BPABATB STATES. 323 

they are regarded as perfectly self-evident. On the con- 
trary, powers deduced only by analogy are not recognized 
by the courts, that is, it must not be inferred because a 
definite right has been granted that analogous rights 
also exist. The grant of power is made by general law 
or by a special act, but there is not in the latter case, any 
more than in the former, a " contract " (in the sense of 
the federal constitution) which cannot be broken. Acts 
of incorporation and charters may be amended just like 
general laws at any moment by the legislature. They 
may be entirely repealed, for no vested rights pass under 
them with which the state thereafter cannot interfere.^ 
City limits may be extended or curtailed, counties divided 
or combined, towns abolished, cities degraded to towna^ 
etc., and those concerned cannot seek the protection of 

1 This i£ true only of the powers granted. '' It is an unsound an^ 
even absurd proposition that political power conferred by the legisl^ 
lure can become a vested right, as against the government, in any 
individual or body of men." Judge Nelson in People t». Jform, 13 
Wend., 881, cited by Cooley, Conatitutional Limitations, 269. The 
property of a municipality is of course not wholly subject to the 
arbitrary will of the legislature. The appropriate constitutional 
principles are thus stated by Cooley: " When corporate powers are 
conferred, there is an implied compact between the state and the car- 
poratoTS that the property which they are given the capacity to ao- 
quire for corporate purposes under their charter shaU not be taken 
from them and appropriated to other uses. If the state grants prop- 
erty to the corporation, the grant is an executed contract which canr 
not be revoked. The rights acquired either by such grants, or in any 
other legitimate mode in which such a corporation can acquire prop- 
erty, are vested rights and cannot be taken away." But as the state 
has not only a right of general control over this kind of property, 
but can also change or annul " corporate powers " themselves, it may 
under certain circumstances be the state's right, and even its duty, 
to make some other disposition of the property, but always with the 
limitation '* that the purpose for which the property was originally 
acquired shaU be kept in view, so far as the circumstances wiU ad- 
mit, in any disposition that may be made of it." IbidL, p. 270. 



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dM THE OOKSTmrnONAL Am) GBNB&AL LAW 

the conrts on the ground that their former rights were 
iriolated. On the other hand, the constitutions often 

'fiot limits to the legislative power in such matters. These 
measures can be taken only in a prescribed way or are 
permitted only under prescribed conditions, — for instance, 
the assent of the parties in interest. Such limiting pro- 
visions especially abound in the constitutions in regard 
to the division or union of counties, the partition of the 
public property or debts when such changes are made, 
the removal of county seats, etc. 

Municipal Coepobations are divided into two main 
classes: municipalities in the more limited sense, which 
are really public legal corporations, and those often des- 
ignated by American publicists as '^ ^t/o^^-corporations." 
The latter are created by general laws and have in every 

• state substantially the same rights and duties.* Their 
raison cPetre va not, as with the municipalities proper, 
an actual separate existence, economically and sociaJly, 
but the necessity of dividing the state for administrative 

. purposes into departments of greater or less size. They 
have properly no natural existence at all. They are in 
substance merely creatures of art. If a map of the United 
States which shows, the chief subdivisions of the states 
is examined, the predominance of straight lines strikes 

1 The limits of the two are oomplex and involved. Coolej, Conxi. 
Lin^, p. 378, defines townships as *' municipal corporations " which do 
^'not usually possess corporate powers under special charters; but 
eocist under general laws of the state/' and to which so little " corpora- 
tive existence is granted," "that they are sometimes spoken of as 
nondescript in oharaeter." D. B. Eaton, on the contrary, says: *' Oar 
state legislatures have tended towards becoming mere registering 
offices for city, viUage and town charters, which in their provisioDS 
' are almost as diverse and hostile as were the laws and municipalities 
of the Middle Ages." MunieipaJ Government, Journal of Social 
Science, 1S75. 



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OF THE SBPABATB STATES. 32!^ 

one at first glance. These lines bound these chief divis- 
ions; and these repay examination, because the institn- 
tions of the thirty-eight states show a far greater similarity 
as to these than as to the smaller or smallest subdivisions. 
§ 100. Counties. These chief divisions are now called 
counties in all the states except Louisiana, where they are 
known as parishes. Several constitutions direct the legis- 
latures to give the counties natural boundaries, as far as 
practicable. As a rule this is impossible, even though the 
counties need not be of the same size. Many constitutions 
require that new counties shall be of a minimum size, 
varying, however, from two hundred and seventy-five 
to nine hundred square miles. In the newer and larger 
states four hundred to six hundred square miles is the nor- 
mal extent. It is evident, therefore, that the counties, 
even in those states which exceed in size many European 
kingdoms, never bear the character of provinces. They 
are subdivisions, but subdivisions with quite extensive 
powers. The officials as a rule are elected, and elected, 
like most American officials, for a very limited time. In 
several states, however, they are appointed by the gov- 
ernor. Even then, nevertheless, they always bear the 
character rather of organs of self-government than of gov- 
ernment officials in the European sense. It is one of the 
most important distinctions between American and Eu- 
ropean institutions — as De Tocqueville insisted — that in 
Europe more or less even in local government the direct 
or indirect control of the central government is held to be 
unavoidable, whereas in the United States the facts are just 
the other way : — the state uses the organs of local gov- 
ernment to discharge its own tasks, for instance, levying 
and collecting taxes. Both the extent and the manner of 
this are different in the different states, for on this point as 
on all others the organization of self-government varies in 



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326. THE OONSnTDTIONAL AND GENERAL LAW 

a myriad details. But despite many differences, some of 
them of no slight importance, all the states offer in their 
county-systems a sufficiently faithful representation of the 
nature and form of self-government. The geographical 
centre of county government is called the county-seat. 
Here are the court-house and the jail. Every county has its 
own county court, with a rather limited jurisdiction, very 
different in the different states. Connected with the court 
are a sheriff, a coroner, and a prosecuting attorney. The 
sheriff represents the executive and administrative power 
of the state. He must preserve the public peace and can 
summon the inhabitants as a posse comitatus to aid him in 
doing so. He enforces the judgment of the courts, makes 
arrests, is responsible for the prisoners, and therefore has 
charge of the jail. The jailer is generally named by him, 
and is usually one of the deputies whom he has a right to 
appoint, — either general or special deputies. He has also 
certain judicial powers, which are fixed by statute and are 
much more limited than according to the English common 
law. In most of the states the constitution limits this im- 
portant officer's eligibility for re-election. The coroner's 
chief duty is to investigate, with the aid of a coroner's jury, 
cases of sudden, mysterious or violent death, deaths in 
prison, etc. The coroner need know nothing of medicine. 
In Massachusetts the office was abolished in 1877, and the 
governor was authorized to entrust doctors with the inves- 
tigation of deaths. At the head of the administration of 
affairs is a board of county commissioners or supervisors. 
As a rule they are separate oflBicers, but the boards are 
sometimes made up of township commissioners or super- 
visors. The South Carolina constitution makes their pow- 
ers extend to " roads, highways, ferries, bridges, and in 
all matters relating to taxes, disbursements of money for 
county purposes, and in every other case that may be nec- 



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OF THB SEP ABATE STATES. 327 

essary to the internal improvement and local concerns of 
the respective counties." The North Carolina constitution 
expressly gives them also " a general supervision and con- 
trol of the penal and charitable institutions, schools," etc. 
To fulfill these duties, the board can levy and coUeot 
taxes and contract debts (in both these respects the con- 
stitution or the laws limit their actions), can acquire and 
dispose of property, can adopt by-laws and pass ordinances 
and punish any violation of them, can make contracts and 
bring suits (and, of course, can themselves be sued). 
Many constitutions expressly forbid counties, townships, 
etc., to lend their credit to private corporations or to take 
any direct interest in private enterprises. The cause of 
this is the misuse which has often been made of such a 
power. Speculators have taken advantage of the exag- 
gerated ideas of the people about the industrial results of 
railroad schemes. The chancellor — so to speak — of the 
administration is the county clerk. Where there is no 
separate recorder or register of deeds, the clerk acts in that 
capacity. A treasurer has charge of the county funds. 
Taxes are often levied by separate officials, who are called 
assessors. The different county officers are not always 
elected or appointed for the same terms. Where there is 
a difference in the terms of office, it is especially the sher- 
iff and treasurer who are most frequently chosen. 

There is no need of going into detail about the election 
districts and the already-mentioned school-districts, be- 
cause these are not organizations with a separate life of 
their own. 

§ 101. Towns and Townships. The town-system has 
worked so well in the New England states that it has 
been adopted by several of the middle and most of the 
western states, and has recently begun to find favor in 
the south. A county is divided into districts of from 



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THB OONSmtrnOlirAL and OBinSBAL LAW 

four to six miles square, called a town or township, and 
forming a body corporate.. Its self-government extends 
to all local affairs, and rests on the broadest democratic 
basis. Here democratic self-government, as it existed in 
the city-republics of antiquity, again asserts itself against 
the representative system. Public affairs are discussed and 
decided upon in the town meeting, and' every inhabitant 
who has a vote under the state laws is entitled to attend 
and to vote at the town meeting. In the announcement 
of a town meeting, all the questions that will be pre- 
sented for discussion must be clearly set forth, so that 
everybody may have time to consider and form an opin- 
ion. The meetings are usually held in the largest vil* 
lage, or in the one nearest the centre. Populous towns, 
indeed, have a hall of their own for this purpose, called 
the town hall. Where there is none such, the church or 
the school-house usually serves as a meeting place. The 
meeting is presided over by a chairman, who is called, in 
the New England states, a moderator. The duties and 
powers of the town embrace levying and collecting taxes 
on the basis of assessments made by the town officials; 
building and maintaining roads and bridges; police; care 
of the poor; the school system, under the control of the 
state school laws ; the conduct of all elections, etc. The 
town officials are generally elected by ballot for one year, 
but in some states for a longer time. The board of 
county commissioners finds its parallel in a board of 
selectmen or trustees. The fact deserves especial men- 
tion, that at the close of the year they make a general 
statement of accounts, and at the same time an estimate 
of the expenditures of the next year, which serves as a 
basis for the tax levy. Taxes are levied by a board of 
assessors, and collected by a '' tax-collector." The town 
finances are managed by a treasurer. The selectmen 



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OF THE SBPARATE 8TATE8. 

are often at the same time assessors and commissioners 
of the poor. The town clerk often holds also the ofBce 
of treasurer. The clerk is a very important officer. He 
not only records the proceedings and conclusions of the 
town meetings and of the selectmen, but also the birth, 
marriage and death statistics of the town. School affairs 
are put in charge of a committee. The officers in charge 
of the streets are called surveyors or road masters. The 
police officials are called constables. 

§ 102. Cities. In 1873, a famous and highly respected 
American said : " It is not only true that we have not 
created or adopted any municipal system, but it is also 
true that we have not, except in the past two years, stud- 
ied the great city problem, much less gained any true 
conception of the principles and methods best adapted to 
a great city government. . . . Surely nothing else on 
this continent has been so badly managed, or is in a con- 
dition at once so dangerous or so disgraceful." ' Since 
there is no general American municipal system, it is not 
possible to sketch in a few lines a correct outline of city 
government and management. Apart from a few facts 
of a general nature, the differences are so many and so 
essential that generalization is barred. I must content 
myself with a few general remarks, chiefly of a histor- 
ical character, which may serve to explain and establish 
the assertion I have quoted. The larger cities are espe- 
cially to be considered in this matter, partly because it is 
in them that the evils due to the system, or lack of sys- 
tem, have come most clearly to light, and partly because 
it is they which make the problem of municipal govern- 
ment a question of the first rank. The germs of the 
weeds which have sprouted up so exuberantly can also 

1 D. B. Eaton, MunieipaJ Ghvemment, Journal of Social Science^ 
1878, p. 6. 



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380 THB OONSTITUnONAL AND G£N£RAL LAW 

generally be found in cities of the second and third rank. 
If the germs have not developed in as startling a way, 
this is not due to the virtue of the inhabitants. Civic 
virtue — outside of the mushroom mining and railroad 
cities of the far west — nowhere rises high above or falls 
far below the average level. In these smaller cities the 
evils are less, on account of all kinds of accidental cir- 
cumstances, and especially because the capacity of de- 
velopment of these germs has a fixed relation to the size 
of the community. 

The war of independence and its general political re- 
sults did not change the basis of municipal affairs. The 
cities lived quietly along under their royal charters. It 
was only in the third decade of the present century that 
a revolution began. It was not by chance that it coin- 
cided in time with the first great aggressive movement 
of the slave-holders' aristocracy in the battle over Mis- 
souri. The growth of the slave-holding power and the 
radicalization of democracy in the free states kept equal 
pace. Each was one of the conditions of the other. The 
farther the radicalization of democracy proceeded, the 
more the statesman had to make room for the profes- 
sional politician, able only in the little tricks of party 
politics, and often a demagogue of the first water. And 
the more the people changed the leadership of statesmen 
for the rule of these professional politicians and dema- 
gogues, the easier did the slavocracy find it to carry 
through its demands. It therefore most energetically 
supported the development of this tendency in the north. 
The infusion of radical democratic principles into munici- 
pal life was the root of all the evils under which the 
administration of the larger cities sickened more and 
more, until the condition of New York became en- 
tirely too monstrous, and with the overthrow of the city 



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OF THB 8EPABATE STATES. 331 

government of 1870, thinking people began to turn theii 
serious attention to this question. 

It was forgotten that the city of modern times is only 
an economic and social community, and not also a polit- 
ical one, as the city of the Middle Ages was. As there 
was no general system of city government, but each city 
had its own charter, and special laws could be passed 
any moment on any matter, the cities — especially the 
large ones — found frequent opportunity to get greater 
powers at the expense of the state.^ At the same time 
the doctrine that the franchise is a natural right of every 
man became more and more the basis of municipal insti- 
tutions. The mayor, the aldermen and the council (or 
common council) were elected directly by the people, and 
the vote of the lowest scamp counted just as much as 
that of the greatest merchant prince. Whoever knew 
how to cajole the masses, who contribute little or noth- 
ing to the public burdens, could take the purse of the city 
into his hands, — a booty great enough to allure both po- 
litical parties. Instead of the common good, party inter- 
ests were more and more made paramount in the city 
elections. The frequent recurrence of the elections, often 
each year, made it still easier to thrust deep into civic 
life the dragon-seed of partisanship, while the necessary 
continuity disappeared more and more from the adminis- 

1 '* There has been no greater legislative abuse, no more prolifio 
source of fraud, pillajs^e and litigation, than the accumulation of 
special city and viUage laws. In New York, for example, in each of 
the four years succeeding 1867, the number and bulk of such laws 
enacted have, I iuink, exceeded aU similar legislation in England, 
since the enactment of the general municipal corporations act in 
1885. In 1870 the legislature of New York passed thirty-nine special 
laws for the city of Brooklyn alone! " Eaton, p. 12. 

** We have too much surrendered the sovereignty of the states to 
the claims of cities and villages." Ibid., p. 9. 



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THE OONSTITUTIONAL AND GBNESAX LAW 

tration of city affairs, and the business experience of the 
oflScials became steadily less. City offices, like those of 
the state and Union, were regarded as spoils of the vic- 
torious party, with which the faithful partisan was to be 
paid and a new horde of "working" and "practical" 
pohticians was to be allured. The method of appoint- 
ment was often such that no one could well be made re- 
sponsible for a bad official, and the consequence of this 
and of the spoils system in general was that year after 
year a more doubtful class of persons filled the city 
offices. The principal official task was not the fulfillment 
of official duties, but the doing of political work; for 
whoever forfeited the favor of the local party-leaders 
also lost his office, and that favor depended upon how 
much a man was worth to the party. The washed or 
unwashed ward-politician, whose headquarters Were usu- 
ally a tap-room, drove the man of judgment and common 
sense entirely out of the field, and the city administra- 
tion steadily developed into a real rat-pit of demagogues 
of all sorts and of every grade, from the man who used 
city politics only as a ladder by which to mount to state 
or national power, down to the insatiable thief whose 
first stolen million only itiflamed his desire for the sec- 
ond. The better elements either really could not stem 
the increasing laxity, or they did not know how to take 
hold of matters, or they did not make a single serious 
effort to bring about a thorough-going reform. It is un- 
doubtedly due in no small degree to the extreme optim- 
ism of the American people that this evil could gain such 
proportions. To this was added a stubborn unwilling- 
ness to give up the deep-rooted and beloved doctrine that 
the rights of man must be the foundation of municipal 
institutions as well as of national. As long as evils can 
become much worse than they are, Americans are not 



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OF THB SEPARATE STATES. 383 

easily persaaded to consider them, and to undertake with 
energy and earnestness reforms which involve substantial 
changes. But the principal cause was unquestionably 
that the evil had so affected all sides of municipal life, 
and had reached such a point, that it had an immense 
power of resistance. From whatever side the attack was 
attempted, almost invincible obstacles presented them- 
selves. When election day came the citizen, as a rule, 
had only a choice between two evils. While he had been 
attending to his business the thoughts and acts of the 
politicians had been directed daring the whole year upon 
this decisive day. The world was shared before the citi- 
zen arrived on the ground : i. e.j the official list of party 
candidates was prepared, and it remained for him only to 
vote for one or the other, or else tc throw away his bal- 
lot. Who had the time, the desire and the commanding 
position needed to assemble individuals, to organize them 
and to persuade them to act together, not only independ- 
ently of the existing party organizations, but in direct 
opposition to them and the thousands and tens of thou- 
sands of mercenary voters upon whom they reckoned? 
The social, intellectual and moral coherence of the people 
was becoming less and less, because of the rapid growth 
of the cities under the influence of modern means of in- 
tercourse and production. The destruction of the vital- 
izing communal spirit, as it had existed in the conserva- 
tive times of the early republic, a nation of small 
tradesmen and farmers, was greatly promoted by the 
immense influx of Europeans of different nations. Power 
was delivered up to the mass, and the mass was a fluctu- 
ating chaos, made up of men from all parts of America 
and Europe. A no small fraction of it either took not 
the slightest exception to the devastating rule of the dem- 
agogues, or expected to make money out of it. And if 



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334: THE OONSnTUnONAL AND GENERAL LAW 

the pressure became so great that the sensible and intel- 
gent people once assembled and won a victory at the 
polls, the politicians soon regained their lost ground; for 
they kept united and kept hold of the levers of the polit- 
ical machine. But the citizen went back to his business, 
and the method of civic administration remained un- 
changed. In other words, the first causes to which the 
evil was due were allowed to quietly continue. Public 
opinion, even, was systematically falsified because the 
leading politicians bought part of the press by the use of 
the official advertising. The party leaders on both sides 
circumvented their own parties by corrupt alliances with 
each other for the distribution of the offices. Finally, 
the crown was placed upon the whole monstrosity when 
an elected judge, belonging to the giing, covered up the 
bold knavery and the comprehensive crimes of its mem- 
bers. 

I have intentionally sketched the situation in New 
York, because the evils in the communal life of great 
American cities come most clearly to light here. The 
other municipal pictures show the same general type; 
only the coloring and tone are not so bright, and in many 
cities of the third grade they darken into such a harmless 
grey, that in a few cases even clear eyes would no longer 
be able to recognize the general type. 

New York seemed to be the fittest example to present, 
not only because here the typical lines are easiest recog- 
nized, but because in New York the bow was bent too 
far by the demagogues, and the catastrophe, which over- 
threw in 1870 the rule of the leaders of Tammany Hall, 
gave rise to a serious investigation of the question of city 
government. Already, indeed, more or less thorough 
reforms of every sort had been tried and brought about 
in many states and the initiative given in many cities, 



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OF THE 8EPABATE STATES. 335 

but it was only through the occurrences in New York 
that a general and thorough discussion of the question 
was caused. This has borne rich fruit, even if every- 
thing which might be desired and even everything which 
is absolutely necessary has not yet been done. The 
ends sought are to enforce personal responsibility; to 
make the mayor more independent; to unite the two law- 
making bbdies into one; to guard the appointment of 
officials; to place the most important executive officers 
under more stringent control; to withdraw certain depart- 
ments — especially the police and fire departments — 
wholly from party control; to give the public new and 
better opportunities to watch the deeds and omissions of 
the city office-holders; to give wider scope to the prin- 
ciples of civil service reform; to compress within nar- 
rower limits the evil of special legislation for cities; and 
gradually, in place of special charters, to bring to pass 
general laws for municipalities divided by law into 



If the condition of the great cities of America was by 
far the darkest picture in the public affairs of the United 
States, and is so still, in part, yet, on the other hand, the 
development of the last fifteen years on this very subject 
has given manifold proofs of the great political capacity 
and the great moral seriousness of the American people. 
It is very evident that American public affairs can neither 
be rightly understood nor fairly judged, if they are stud- 
ied by themselves, that is, without regard to their histor- 
ical development. This cannot be urged with too much 
emphasis, although the doctrine may seem, on account of 
its generally recognized validity, only a trite truth. Polit- 
ically and socially the United States are in all essential 
particulars a community so like the European civilized 
world, that Europeans almost always fall into the error 



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336 CONSTITUTIONAL LAW OF THB SEPARATE STATES. 

of judging about transatlantic affairs simply by compar- 
ing them with the corresponding European relations and 
institutions, and so, in spite of the unconditional recogni- 
tion of this doctrine, they examine and criticise America 
from European stand-points. They can readily enumerate 
the essential facts which have made, and must make, the 
United States, politically and socially, a aui-generU civil- 
ized state, but they almost never take these facts into 
consideration in the right way and at their real worth 
when this theoretical knowledge is applied to concrete 
questions. This requires, indeed, a long life among 
Americans, and long work with them; for the history of 
the old world presents no analogies, and it is therefore 
only when guided by a thousand single instances of daily 
life, by direct personal perception and by experience, 
that one can fully understand the constant and all-per- 
vading influence of those factors which are peculiar to 
the new world. These factors, developed to a high de- 
gree, point out the goal to be reached as well as the best 
nvay to reach it, because they form its positive basis. 
The more comprehensive and thorough one's knowledge 
is of the conditions under which the United States have 
attained their present social and political siatttSj the more 
convinced will one become, despite all sharp criticism of 
individual instances, that a judgment of the whole phe- 
nomenon must be embodied in these words : no people of 
ancient or modem times has shown a greater genius for 
founding a state. 



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CONSTITUTION OF THE UHTED STATES-1787. 



Nois: The flgnires after the different clauses refer to the pages of the book. 

We the People of the United States, in Order to form 
a more perfect Union, establish Justice, insure domestio 
Tranquility, provide for the common defence, promote 
the general Welfare, and secure the Blessings of Liberty 
to ourselves and our Posterity, do ordain and establish 
this Constitution for the United States of America. 37, 47. 

ARTICLE L 

Section 1. All legislative Powers herein granted shall 
be vested in a Congress of the United States, which ishall 
consist of a Senate and House of Eepresentiitives. 112. 

Section 2. The House of Kepresentatives shall be 
composed of Members chosen every second Year by the 
People of the several States, and the Electors in each 
Stat-e shall have the Qualifications requisite for Electors 
of the most numerous Branch of the State Legislature. 
70, 71, 72. 

No Person shall be a Eepresentative who shall not 
have attained to the Age of twenty-five Years, and been 
seven Years a Citizen of the United States, and who shall 
not, when elected, be an Inhabitant of that State in which 
he shall be chosen. 80. 

Kepresentatives and direct Taxes shall be apportioned 
among the several States which may be included within 
this Union, according to their respective Numbers, which 



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338 CONSTITUTION OF THB UNITED STATES — 1787. 

shall be determined by adding to the whole Number of 
Free persons, including those bound to Sei vice for a Term 
of Years, and excluding Indians not taxed, three fifths of 
all other Persons. The actual Enumeration shall be made 
within three Tears aftef the first Meeting of the Con- 
gress of the United States, and within every subsequent 
Term of ten Years, in such Manner as they shall by Law 
direct. The Number of Representatives shall not exceed 
one for every thirty Thousand, but each State shall have 
at Least one Representative; and until such enumeration 
shall be made, the State of New Hampshire shall be en- 
titled to chuse three, Massachusetts eight, Rhode Island 
and Providence Plantations one, Connecticut five, New 
York six. New Jersey four, Pennsylvania eight, Dela- 
ware one, Maryland six, Virginia ten, North Carolina 
five. South Carolina five, and Georgia three. 73 (note 
2), 75, 118. 

When vacancies happen in the Representation from 
any State, the Executive Authority thereof shall issue 
Writs of Election to fill such Vacancies. 70. 

The House of Representatives shall chuse their Speaker 
and other Officers; and shall have the sole Power of Im- 
peachment 82, 158. 

Section 3. The Senate of the United States shall be 
composed of two Senators from each State, chosen by 
the Legislature thereof, for six Years ; and each Senator 
shall have one Vote. 70, 79. 

Immediately after they shall be assembled in Conse- 
quence of the first Election, they shall be divided as 
equally as may be into three Classes. The seats of the 
Senators of the first Class shall be vacated at the Expira- 
tion of the second year, of the second Class at the Expi- 
ration of the fourth Year, and of the third Class at the 
Expiration of the sixth Year, so that one-third may be 



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CONSTITUTION OF THE UNITED STATES — 1787. 339 

chosen every second Year; and if Yacancies happen by 
Resignation, or otherwise, during the Eecess of the Leg- 
islature of any State, the Executive thereof may make 
temporary Appointments until the next Meeting of the 
Legislature, which shall then fill such Yacancies. 70. 

No Person shall be a Senator who shall not have at- 
tained to the Age of thirty Years, and been nine Years a 
Citizen of the United States, and who shall not, when 
elected, be an Inhabitant of that State for which he shall 
be chosen. 80. 

The Vice President of the United States shall be Pres- 
ident of the Senate, but shall have no Yote, unless they 
be equally divided. 81. 

The Senate shall chuse their other Officers and also a 
President pro tempore, in the Absence of the Yice Presi^ 
dent, or when he shall exercise the Office of President of 
the United States. 81. 

The Senate shall have the sole Power to try all Impeach- 
ments. When sitting for that Purpose, they shall be on 
Oath or Affirmation. When the President of the United 
States is tried, the Chief Justice shall preside: and no 
Person shall be convicted without the Concurrence of two 
thirds of the Members present. 158, 162. 

Judgment in Cases of Impeachment shall not extend 
further than to removal from Office, and disqualification 
to hold and enjoy any Office of honor, Trust or Profit 
under the United States: but the Party convicted shall 
nevertheless be liable and subject to Indictment, Trial, 
Judgment and Punishment, according to Law. 161. 

SBcmoK 4. The Times, Places and manner of holding 
Elections for Senators and Eepresentatives, shall be pre- 
scribed in each State by the Legislature thereof; but the 
Congress may at any time by Law make or alter such 
Begulations, except as to the Places of chusing Sena- 
tors. 76. 



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840 00K8TITUTION OF THE UXITED STATES — 1787. 

The Congress shall assemble at least once in every Year, 
and such Meeting shall be on the first Monday in Decem- 
ber, unless they shall by Law appoint a different Day. 81. 

Section 5. Each House shall be the Judge of the Elec- 
tions, Beturns and Qualifications of its own Members, 
and a Majority of each shall constitute a Quorum to do 
Business; but a smaller Number may adjourn from day 
to day, and may be authorized to compel the Attendance 
of absent Members, in such Manner, and under such Pea- 
alties as each House may provide. 100. 

Each House may determine the Rules of its Proceed- 
ings, punish its Members for disorderly Behaviour, and, 
with the Concurrence of two thirds, expel a Member. 101. 

Each House shall keep a Journal of its Proceedings, 
and from time to time publish the same, excepting snch 
Parts as may in their Judgment require Secrecy; and 
the Yeas and Nays of the Members of either House on 
any question shall, at the Desire of one fifth of those 
present, be entered on the Journal. 108. 

Neither House, during the Session of Congress, shall, 
without the Consent of the other^ adjourn for more than 
three days, nor to any other Place than that in which the 
two Houses shall be sitting. 82. 

Section 6. The Senators and Representatives shall re- 
ceive a Compensation for their services, to be ascertained 
by Law, and paid out of the Treasury of the United States. 
They shall in all Cases, except Treason, Felony and 
•Breach of the Peace, be privileged from Arrest during 
their Attendance at the Session of their respective Houses, 
and in going to and returning from the same; and for 
an; Speech or Debate in either House, they shall not be 
questioned in any other Place. 104, 104 (note). 

No Senator or Kepresentative shall, during the Time 
for which he was elected, be appointed to any civil Office 
under the Authority of the United States, which shall 



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CON8TITDTION OF THE UNITED STATES — 1787. 341 

have been created, or the Emoluments whereof shall 
have been encreased during such time; and no Person 
holding any Ofl9ce under the United States, shall be a 
Member of either House during his Continuance in Office. 
106. 

Secttiok 7. All bills for raising Eevenue shall originate 
in the House of Eepresentatives; but the Senate may 
propose or concur with Amendments as on other Bills. 
132, 133. 

Every Bill which shall have passed the House of Rep- 
resentatives and the Senate, shall, before it become a Law, 
be presented to the President of the United States. If 
he approve he shall sign it, but if not he shall return it, 
with his Objections to that House in which it shall have 
originated, who shall enter the Objections at large on 
their Journal, and proceed to reconsider it. If after such 
Eeconsideration two thirds of that House shall agree to 
pass the Bill, it shall be sent, together with the Objec- 
tions, to the other House, by which it shall likewise be 
reconsidered, and if approved by two thirds of that 
House, it shall become a Law. But in all such Cases the 
Votes of both Houses shall be determined by yeas and 
Nays, and the Names of the Persons voting for and 
against the Bill shall be entered on the Journal of each 
House respectively. If any Bill shall not be returned by 
the President within ten Days (Sundays excepted) after 
it shall have been presented to him, the Same shall be a 
Law, in Like Manner as if he had signed it, unless the 
Congress by their Adjournment prevent its Ketum, in 
which Case it shall not be a Law. 112, 113 (note). 

Every Order, Resolution, or Vote to which the Conotir- 
rence of the Senate and House of Eepresentatives may be 
necessary (except on a question of Adjournment) shall be 
presented to the President of the United States; and 



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84i OONSTITUTIOK OF THB UNITKD 0TATES — 1787- 

before the Same shall take Effect, shall be approved by 
him, or being disapproved by him, shall be repassed by 
two thirds of the Senate and House of Bepresentatives, 
aooording to the Rules and Limitations prescribed in the 
Case of a Bill. 113 (note). 

SsOTioBT 8. The Congress shall have Powot to lay and 
collect Taxes, Duties, Imposts and Excises, to pay the 
Debts and provide for the common Defence and general 
Welfare of the United States; but all Duties, Imposts 
and Excises shall be uniform throughout the United 
States; 117, 118. 

To borrow Money on the credit of the United States; 
9& (note), 122. 

To regulate Commerce with foreign Nations, and among 
the several States, and with the Indian Tribes; 136. 

To establish an uniform Rule of Naturalization, and uni- 
form Laws on the subject of Bankruptcies throughoat 
the United States; 149. 

To coin Money, regulate the Value thereof, and of 
foreign Coin, and fix the Standard of Weights and 
Measures; 124, 150. 

To provide for the Punishment of counterfeiting the 
Securities and current Coin of the United States; 154. 

To establish Post Offices and post Boads; 150. 

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 Dis- 
coveries; 151. 

To constitute Tribunals inferior to the supreme Court; 
153. 

To define and punish Piracies and Felonies committed 
on the high Seas, and Offences against the Law of Na- 
tions; 153, 163, 200. 

To declare War, grant Letters of Marque and Reprisal, 



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CONSTITUTION OF THE UNITED STATES — 1787, S48 

and make Eules concerning Captures on Land and Water; 
46 (note), 62 (note), 164, 166, 194, 200, 205. 

To raise and support Armies, but no Appropriation of 
Money to that Use shall be for a longer Term than two 
Years; 134, 167. 

To provide and maintain a Navy ; 167. 

To make Rules for the Government and Eegulation of 
the land and naval Forces ; 171. 

To provide for calling forth the Militia to execute the 
Laws of the Union, suppress Insurrections and repel In- 
vasions; 170. 

To provide for organizing, arming, and disciplining, the 
Militia, and for governing such Part of them as may be 
employed in the Service of the United States, reserving 
to the States respectively, the Appointment of the Offi- 
cers, and the Authority of training the Militia according 
to the discipline prescribed by Congress; 169, 170. 

To exercise exclusive Legislation in all Cases whatso- 
ever, over such District (not exceeding ten Miles square) 
as may, by Cession of particular States, and the Accept- 
ance of Congress, become the Seat of the Government of 
the United States, and to exercise like Authority over all 
Places purchased by the Consent of the Legislature of 
the State in which the Same shall be, for the Erection of 
Forts, Magazines, Arsenals, dock- Yards, and other need- 
ful Buildings;— And 172, 174. 

To make all Laws which shall be necessary and proper 
for carrying into Execution the foregoing Powers, and 
all other Powers vested by this Constitution in the Gov- 
ernment of the United States, or in any Department or 
Officer thereof. 45, 64, 158. 

Secttion 9. The Migration or Importation of such Per- 
sons as any of the States now existing shall think proper 
to admit, shall not be prohibited by the Congress prior 



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844 oonrenruTioN of thb unttbd states — 1787. 

to the Year one thousand eight hundred and eight, but a 
Tax or duty may be imposed on such Importation, not 
exceeding ten dollars for each Person. 19. 

The Privilege of the writ of Habeas Corpus shall not 
be suspended, unless when in Cases of Rebellion or Inva- 
sion the public Safety may require it. 196. 

Ko Bill of Attainder or ex post facto Law shall be 
passed. 156, 223. 

Ko Capitation, or other direct, tax shall be laid, unless 
in proportion to the Census or Enumeration herein before 
directed to be taken. 118. 

No Tax or Duty shall be laid on Articles exported from 
any State. 118. 

No Preference shall be given by any Regulation of 
Commerce or Revenue to the Ports of one State, over 
those of another: nor shall Yessels bound to, or from, 
one State, be obliged to enter, clear, or pay Duties in 
another. 148. 

No Money shall be drawn from the Treasury, but in 
Consequence of Appropriations made by Law; and a 
regular Statement and Account of the Receipts and Ex- 
penditures of all public Money shall be published from 
time to time. 133. 

No Title of Nobility shall be granted by the United 
States: And no Person holding any Office of Profit or 
Trust under them, shall, without the Consent of the Con- 
gress, accept of any present. Emolument, Office, or Title, 
of any kind whatever, from any King, Prince, or foreign 
State. 106, 225. 

Section 10. No State shall enter into any Treaty, Al- 
liance, or Confederation ; grant Letters of Marque and 
Reprisal; coin Money; emit Bills of Credit; make any 
Thing but gold and silver Coin a Tender in Payment of 
Debts; pass any Bill of Attainder, ex post facto Law, or 



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OONSnTUTIOH OF THE UNITED STATES — 1787. 345 

Law impairing the Obligation of Contracts, or grant any 
Title of Nobility. 123, 164, 166, 1^24, 225, 231, 

No State shall, without the Consent of the Congress, 
lay any Imposts or Duties on Imports or Exports, except 
what may be absolutely necessary for executing its in- 
spection Laws; and the net Produce of all Duties and 
Imports, laid by any State on Imports or Exports, shall 
be for the Use of the Treasury of the United States; and 
all such Laws shall be subject to the Eevision and Con- 
troul of the Congress. 120, 149 (note). 

No State shall, without the Consent of Congress, lay any 
Duty of Tonnage, keep Troops, or Ships of War in time 
of Peace, enter into any Agreement or Compact with any 
other State, or with a foreign Power, or engage in War, 
unless actually invad*^d, or in such imminent Danger as 
will not admit of delay. 120, 164, 165, 167. 

ARTICLE IL 

Section 1. The executive Power shall be vested in a 
President of the United States of America. 82. 

He shall hold his Office during the Term of four years, 
and, together with the Vice President, chosen for the 
same Term, be elected, as follows: 

Each State shall appoint, in such Manner as the Legis- 
lature thereof may direct, a Number of Electors, equal to 
the whole Number of Senators and Kepresentatives to 
which the State may be entitled in the Congress: but 
no Senator or Kepresentati ve, or Person holding an Office 
of Trust or Profit under the United States, shall be ap- 
pointed an Elector. 85. 

The Congress may determine the Time of chusing the 
Electors, and the Day on which they shall give their 
Yotes ; which day shall be the same throughout the United 
States. 85. 



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34»> CONSTITCTIOX OF THB UNITED STATES — 17S7. 

No person except a natural born Citizen, or a Citizen 
of the United States, at the time of the Adoption of this 
Constitution, shall be eligible to the Office of President ; 
neither shall any Person be eligible to that office who 
shall not have attained to the Age of thirty five Years, 
and been fourteen Years a Resident within the United 
States. 84, 84 (note). 

In Case of the Removal of the President from Office, 
or of his Death, Resignation or Inability to discharge the 
Powers and Duties of the said Office, the Same shall 
devolve on the Vice President, and the Congress may by 
Law provide for the Case of Removal, Deatli, Resignation 
or Inability, both of the President and Vice President, 
declaring what Officer shall then act as President, and 
such Officer shall act accordingly, until the DisabiUty bo 
removed, or a President shall be elected. 88. 

The President shall, at stated Times, receive for his 
Services, a Compensation, which shall neither be encreased 
nor diminished during the period for which he shall have 
been elected, and be shall not receive within that Period 
any other Emolument from the United States, or any of 
them. 106. 

Before he enter on the Execution of his Office, he shall 
take the following Oath or Affirmation : — " I do solemnly 
swear (or affirm) that I will faithfully execute the Office 
of President of the United States, and will to the best of 
my Ability, preserve, protect and defend the Constitutioa 
of the United States." 45. 

Section 2. The President shall be Commander in Chief 
of the Army and ISTavy of the United States, and of the 
Militia of the several States, when called into the actual 
Service of the United States; he may require the Opin- 
ion, in writing, of the principal Officer in each of the 
executive Departments, upon any Subject relating to the 



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CONSTITUTION OF THE UNITED STATES — 1787. 34:7 

Duties of their respective Offices, and he shall have Power 
to grant Reprieves and Pardons for Offenses against the 
XJnit^ States, except in Cases of Impeachment. 91, 162, 
192, 210, 211 (note 4). 

He shall have Power, by and with the Advice and 
Consent of the Senate, to make Treaties, provided two 
thirds of the Senators present concur; and he shall nom- 
inate, and by and with the Advice and Consent of Uie 
Senate, shall appoint Ambassadors, other public Ministers 
and Consuls, Judges of the supreme Court, and all other 
Officers of the United States, whose Appointments are 
not herein otherwise provided for, and which shall be 
established by Law : but the Congress may by Law vest 
the Appointment of such inferior Officers, as they think 
proper, in the President alone, in the Courts of Law, or 
in the Heads of Departments. 98, 199, 201, 207. 

The President shall have Power to fill up all Vacancies 
that may happen during the recess of the Senate, by 
granting Commissions which shall expire at the End of 
their next Session. 209. 

Section 3. He shall from time to time give the Con- 
gress Information of the state of the Union, and recom- 
mend to their Consideration such Measures as he shall 
jadge necessary and expedient. 114. 

He may, on extraordinary Occasions, convene both 
Houses, or either of them, and, in Case of Disagreement 
between them, with Respect to the Time of Adjourn- 
ment, he may adjourn them to such Time as he shall 
think proper; he shall receive Ambassadors and other 
public Ministers; he shall take Care that the Laws be 
faithfully executed, and shall Commission all the Officers 
of the United States. 44, 81 (and note 2), 199, 209. 

Section 4. The President, Vice President and all civil 
Officers of the United States, shall be removed from Office 



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348 CONSTITUTION OF THE UNITED STATES — 1787. 

on Impeachment for, and Conviction of, Treason, Bribery, 
or other high Crimes and Misdemeanors. 159. 

ARTICLE m. 

Section 1. The judicial Power of the United States, 
shall be vested ia one supreme Court, and in such inferior 
Courts as the Congress may from time to time ordain and 
establish. The Judges, both of the supreme and inferior 
Courts, shall hold their Offices during good Behaviour, 
and shall, at stated Times, receive for their Services, a 
Compensation, which shall not be diminished during their 
Continuance in Office. 60, 96, 98 (note), 106. 

Section 2. The judicial Power shall extend to all Cases, 
in Law and Equity, arising under this Constitution, the 
Laws of the United States, and Treaties made, or which 
shall be made, under their Authority; — to all Cases affect- 
ing Ambassadors, other public Ministers and Consuls; — 
to all Cases of admiralty and maritime Jurisdiction; — ^to 
Controversies between two or more States; — ^to Contro- 
versies to which the United States shall be a Party; — ^be- 
tween a State and Citizens of another State; — between 
Citizens of different States; — between Citizens of the 
same State claiming Lands under Grants of different 
States, and between a State, or the Citizens thereof, and 
foreign States, Citizens or subjects. 60, 154, 215. 

In all Cases affecting Ambassadors, other public Minis- 
ters and Consuls, and those in which a State shall be 
Party, the supreme Court shall have original Jurisdiction. 
In all the other Cases before mentioned, the supreme Court 
shall have appellate Jurisdiction, both as to Law and 
Fact, with such Exceptions, and under such Regulations 
as the Congress shall make. 66 (note), 221, 222. 

The Trial of all Crimes, except in Cases of Impeach- 
ment, shall be by Jury; and such Trial shall be held in 



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CONSTITUTION" OF THE UNITED STATES — 178Y, 849 

the State where the said Crimes shall have beea commit- 
ted; but when not committed within any State, the Trial 
shall be at such Place or Places as the Congress may by 
Law have directed. 223. 

Section 3. Treason against the United States, shall 
consist only in levying War against them, or in adhering 
to their Enemies, giving them Aid and Comfort. No Per- 
son shall be convicted of Treason unless on the Testimony 
of two Witnesses to the same overt Act, or on Confession 
in open Court. 154. 

The Congress shall have Power to declare the Punish- 
ment of Treason, but no Attainder of Treason shall work 
Corruption of Blood, or Forfeiture except during the 
life of the Person attainted. 154. 

ARTICLE IV. 

Sbotion 1. Full Faith and Credit shall be given in 
each State to the public Acts, Kecords, and judicial Pro- 
ceedings of every other State. And the Congress may 
by general Laws prescribe the Manner in which such 
Acts, Becords and Proceedings shall be proved, and the 
Effect thereof. 243. 

Section 2. The Citizens of each State shall be entitled 
to all Privileges and Immunities of Citizens in the sev- 
eral States. 247, 249. 

A person charged in any State with Treason, Felony, 
or other Crime, who shall flee from Justice, and be found 
in another State, shall on Demand of the executive Au- 
thority of the State from which he fled, be delivered up 
to be removed to the State having Jurisdiction of the 
Crime. 156, 245. 

No Person held to Service or Labour in one State, under 
the Laws thereof, escaping into another, shall, in Conse- 
quence of any Law or Begulation therein, be discharged 



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350 CONSTITUTION OP THB UNITED STATES — 1787. 

from such Service or Labour, but shall be delivered up 
on Claim of the Party to whom such Service or Labour 
may be due. 246 (note 2). 

Section 3. New States may be admitted by the Con- 
gress into this Union; but no new State shall be formed 
or erected within the Jurisdiction of any other State; nor 
any State be formed by the Junction of two or more 
States, or Parts of States, without the Consent of the 
Legislatures of the States concerned as well as of the Con- 
gress. 185. 

The Congress shall have Power to dispose of and make 
all needful Rules and Eegulations respecting the Territory 
or other Property belonging to the United States; and 
nothing in this Constitution shall be so construed as to 
Prejudice any Claims of the United States, or of any 
particular State. 176. 

Section 4. The United States shall guarantee to every 
State in this Union a Republican Form of Government, 
and shall protect each of them against Invasion ; and on 
Application of the Legislature, or of the Executive (when 
the Legislature cannot be convened) against domestic 
Violence. 165, 171, 236. 

ARTICLE V. 

The Congress, whenever two thirds of both Houses 
shall deem it necessary, shall propose Amendments to 
this Constitution, or, on the Application of the Legisla- 
tures of two thirds of the several States, shall call a 
Convention for proposing Amendments, which, in either 
case, shall be valid to all Intents and Purposes, as Part 
of this Constitution, when ratified by the Legislatures of 
three fourths of the several States, or by Conventions in 
three fourths thereof, as the on» or the other Mode of 
Ratification may be proposed by the Congress; Provided 



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OONSTITUTION OF THE UNITED STATES — 1787. 351 

that no Amendment which may be made prior to the 
Year One thousand eight hundred and eight shall in any 
Hanner affect the first and fourth Clauses in the NinUi 
Section of the first Article; and that no State, without 
its Consent, shall be deprived of its equal Suffrage in the 
Senate. 62, 52 (note), 262. 

ARTICLE VL 

All Debts contracted and Engagements entered mto, 
before the Adoption of this Constitution, shall be as 
valid against the United States under this Constitution, 
as under the Confederation. 122. 

This Constitution, and the Laws of the United States 
which shall be made in Pursuance thereof; and all Treat- 
ies made, or which shall be made, under the Authority 
of the United States, shall be the supreme Law of the 
Land; and the Judges in every State shall be bound 
thereby, anything in the Constitution or Laws of any 
State to the Contrary notwithstanding. 43, 205. 

The Senators and Eepresentatives before mentioned, 
and the Members of the several State Legislatures, and 
all executive and judicial Officers, both of the United 
States and of the several States, shall be bound by Oath 
or Affirmation, to support this Constitution; but no relig- 
ious Test shall ever be required as a Qualification to any 
Office or public Trust under the United States. 225. 

ARTiq;^ vn. 

The ratification of the Conventions of nine States, shall 
be sufficient for the Establishment of this Constitution 
between the States so ratifying the Same. 28. 

Done in Convention by the Unanimous Consent of the 
States present the Seventeenth Day of September in the 
Year of our Lord one thousand seven hundred and 



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352 OONSTITUTION OF THE UNITED STATES — 1787. 

Eighty seven, and of the Independence of the United 
States of America the Twelfth. In Witness whereof 
We have hereunto subscribed our Thames. 

Go: Washington — 
Preridt. and Deputy from Virginia. 

new HAJiPsniBB. 
John Lanqdon, Nicholas Gilman. 

kassaohusetis. 
Nathaniel Gobham, Bufus Enro. 

OONNECnCUT. 

Wic Sah'l. Johnson, Booeb Shermah; 

NEW YORK. 

Alexander IIahilton. 
new jersey. 
Wil: LrviNosTONy Wm. Paterson, 

David Brearley, Jona. Dayton. 

pennsylvania. 

B. Franklin, Thos. Fitzsimons, 

Thomas Mifflin^ Jarbd Inoersoll^ 

RoBT. Morris, James Wilson, 

Geo. Clymer, Gouv. Morris. 

delaware. 
Geo. Bead, Richard Bassett, 

Gunning Bedford, Jun., Jaoo: Broom, 

John Dickinson; 

maryland. 
James McBEenby, Dan. Carroll, 

Dan. Jenifer, of St. Thomas. 

VIROINLAu 

John Blaib, James Madison, Jr. 



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ooNfinruTioN of thb united states — 1787. 353 

nobth oabolika. 
Wm. Bloxjih*, Hugh Williamsoh, 

EiOH'D DoBBS Speight. 

SOUTH CAROLINA. 

J. RuTLEDGE, Charles PincenxTi 

Charles Cotesworth Pinokney, Pierce Butler. 

GEORGIA. 

William Few, Abr. Baldwin. 

Attest: William Jaokson, Secretc^ry. 

28 



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354 OONSTITUTION OF THE UNITBD 6TATK8 — 1787. 

ARTICLES IN ADDITION TO, AND AMENDMENT 
OF, THE CONSTITUTION OF THE UNITED 
STATES OF AMERICA, PROPOSED BY CON- 
GRESS, AND RATIFIED BY THE LEGISLAT 
URES OF THE SEVERAL STATES PURSUANT 
TO THE FIFTH ARTICLE OF THE ORIGINAL 
CONSTITUTION. 28. 

ARTICLE L 

Congress shall make no law respecting an establish- 
ment of religion, or prohibiting the free exercise thereof; 
or abridging the freedom of speech, or of the press; or 
the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances. 29, 
50 (note), 226, 228, 229. 

ARTICLE n. 

A well regulated Militia, being necessary to the secu- 
rity of a free State, the right of the people to keep and 
bear Arms, shall not be infringed. 29, 50 (note), 230. 

ARTICLE in. 

No Soldier shall, in time of peace, be quartered in any 

house, without the consent of the Owner, nor in time of 

war, but in a manner to be prescribed by law. 29, 50 

(note), 171. 

ARTICLE IV. 

The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no Warrants shall 
issue, but upon probable cause, supported by Oath or 
affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized. 29, 50 
(note), 251, 257. 



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CONSTITUTION OF THE UNITED STATES — 1787. 355 

ARTICLE V. 

No person shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment or in- 
dictment 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; nor shall any 
person be subject for the same offense to be twice put in. 
jeopardy of life or limb ; nor shall be compelled in any 
Criminal Case to be a witness against himself, nor be de- 
prived of life, liberty, or property, without due process of 
law ; nor shall private property be taken for public use, 
without just compensation. 29, 50 (note), 251, 258, 261 
(note). 

ARTICLE VT. 

In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial, by an impartial 
jury of the State and district wherein the crime shall have 
been committed, which district shall have been previously 
ascertained by law, and to be informed of the nature and 
cause of the accusation; to be confronted with the wit- 
nesses against him; to have compulsory process for ob- 
taining witnesses in his favor, and to have the Assistance 
of Counsel for his defense. 29, 50 (note), 251, 258. 

ARTICLE VII. 

In suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by Jury 
shall be preserved, and no fact tried by a jury shall be 
otherwise re-examined in any Court of the United States, 
than according to the rules of the common law. 29, 50 
(note), 222, 251, 261. 



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356 ooNSTmrrioN of the united states — 1787. 
ARUCXJB VIII. 

Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted 29, 

50 (note), 251, 258, 261. 

ARTICLE EC 

The enumei*ation in the Constitution, of certain rights, 
shall not be construed to deny or disparage others re- 
tained by the people. 29. 

ARTICLE X. 

The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are re- 
served to the States respectively, or to the people. 29, 

51 (and note), 53, 54, 55. 

ARTICLE XI. 

The Judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com- 
menced or prosecuted against one of the United States 
by Citizens of another State, or by Citizens or Subjects 
of any Foreign State. 30, 220. 

ARTICLE Xn. 

The Electors shall meet in their respective states, and 
70te by ballot for President and Vice-President, one of 
whom, at least, shall not be an inhabitant of the same 
State with themselves; they shall name in their ballots 
the person voted for as President, and in distinct ballots 
the person voted for as Vice-President, and they shall 
make distinct lists of all persons voted for as President, 
and of all persons voted for as Vice-President, and of the 
number of votes for each, which lists they shall sign and 



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CONSTITUTION OF THE UNITED STATES — 1787. 357 

certify, and transmit sealed to the seat of the Government 
of the United States, directed to the President of the 
Senate; — The President of the Senate shall, in the 
presence of the Senate and House of Representatives, 
open all the certificates and. the votes shall then be 
counted; — The person having the greatest number of 
votes for President, shall be the President, if such num- 
ber be a majority of the whole number of Electors ap- 
pointed; and if no person have such majority, then from 
the persons having the highest numbers not exceeding 
three on the list of those voted for as President, the 
House of Representatives shall choose immediately, by 
ballot, the President. But in choosing the President, the 
votes shall be taken by states, the representation from 
each state having one vote; a quorum for this purpose 
shall consist of a member or members from two-thirds of 
the states, and a majority of all the states shall be neces- 
sary to a choice. And if the House of Representatives, 
shall not choose a President whenever the right of choice 
shall devolve upon them, before the fourth day of March 
next following, then the Vice-President shall act as Presi- 
dent, as in the case of the death or other constitutional 
disability of the President. The person having the great- 
est number of votes as Vice-President, shall be the Vice- 
President, if such number be a majority of the whole 
number of Electors appointed, and if no person have a 
majority, then from the two highest numbers on the list, 
the Senate shall choose the Vice-President ; a quorum for 
the purpose shall consist of two-thirds of the whole num- 
ber of Senators^ and a majority of the whole number shall 
be necessary to a choice. But no person constitutionally 
ineligible to the office of President shall be eligible to that 
of Vice-President of the United States. 30, 84, 89. 



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358 ooNSTmjTioN of the united states — 1787. 

ARTICLE Xin. 

Section 1. Neither slavery nor involuntary servitude, 
except as a punishment for crime whereof the party shall 
have been duly convicted, shall exist within the United 
States, or any place subject to their jurisdiction. 30, 31 
(note), 280. 

Section 2. Congress shall have power to enforce this 
article by appropriate legislation. 

ARTICLE XIV. 

Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State wherein 
they reside. No State shall make or enforce any law 
which shall abridge the privileges or immunities of citi- 
zens of the United States; nor shall any State deprive 
any person of life, liberty, or property, without due 
process of law; nor deny to any person within its juris- 
diction the equal protection of the laws. 30, 250, 251. 

Section 2. Representatives shall be apportioned among 
the several States according to their respective numbers, 
counting the whole number of persons in each State, ex- 
cluding 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 J^egislature thereof, is denied to 
an}' of the male inhabitants of such State, being twenty- 
one years of age, and citizens of the United States, or in 
any way abridged, except for participation' in rebellion, or 
other crime, 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 
twenty-one years of age in such State. 30, 73. 



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CONSTITUTION OF THE UNITBD 8VATES — 1787. 359 

Section 3. No person shall be a Senator or Repre- 
sentative in Congress, or elector of President and Vice 
President, or hold any oflSce, civil or military, under the 
United States, or under any State, who, having previously 
taken an oath, as a member of Congress, or as an oflBicer 
of the United States, or as a member of any State Leg- 
islature, or as an. executive or judicial oflScer of any 
State, to support the Constitution of the United States, 
shall have engaged in insurrection or rebellion against 
the same, or given aid or comfort to the enemies thereof. 
But Congress may by a vote of two-thirds of each House, 
remove such disability. 30, 80, 100 (note 2). 

Section 4. The validity of the public debt of the United 
States, authorized by law, including debts incurred for 
payment of pensions and bounties for services in suppress- 
ing insurrection or rebellion, shall not be questioned. But 
neither the United States nor any State shall assume or 
pay any debt or obligation incurred in aid of insurrec- 
tion or rebellion against the United States, or any claim 
for the loss or emancipation of any slave ; but all such 
debts, obligations and claims shall be held illegal and 
void. 30, 122 (note 1). 

Section 5. The Congress shall have power to enforce, 
by appropriate legislation, the provisions of this article. 

ARTICLE XV. 

Section 1. 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 pre- 
vious condition of servitude. 30, 75. 

Section 2. The Congress shall have power to enforce 
this article by appropriate legislation. 



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INDEX. 



Adams, John, sedition law passed during his presidency, 229. 
AdamSy J. Q., on adoption of constitution, 26; elected president by 

house, 86, note 1. 
Admission of new states, 88, 76, note 2, 185. 
Albany congress of 1754. 4. 
Alien and sedition laws, 40, note 2, 229. 
Aliens, non-naturalized, may have franchise, 72. 
Amendment of the constitution, 15, 28, 31 (note), 52, 262. 
Amendment of state constitutions, 292. 
Amendments, ratification of thirteenth, fourteenth and fifteenth, 81, 

note. 
Annapolis convention of 1786, 15. 
Appropriations, 181, and note. 
Appropriations, statistics of, 185. 
Articles of confederation, 8, 8. 
Arthur, Chester A., becomes president, 88; nogotiateB oommeircial 

treaties, 204, note. 
AJTests, 257. 
Assembly, right of, 280. 
Attainder, bills o.\ 228. 
Attempts at federation, 4. 
Bank of the United States, 126, note 2. 
Bearing arms, right of, 280. 
Benevolent institutions (state), 284. 
Bible in public schools, 809. 
BiU of rights, 29, 50, 267. 
Bills of attainder, 228. 
Brevet rank, 197. 
Cabinet, has no executive power, 83; no constitutional existence, 90: 

no legal or political responsibility, 90 
Cabinet in the states, 288. 
Calhoun, John C, on nullification, 40. 
Capitation taxes (state), 299. 



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362 INDEX. 

Charters, 288. 

Checks and balances, system of, 60. 

Church and state, 225, 314. 

Citizens of the separate states, 248. 

City government, 329. 

Civil rights, 257. 

Civil service reform, 106, note, 208, note, 256, 275, 290. 

Cleveland, Grover, opposes coinage of silver, 124, note. 

Clinton, George, opposes ratification of the constitution, 25. 

Coins and coinage, 124, note. 

Colleges and universities, 313. 

Common law in America, 161. 

Commerce, 186. 

Comity between states, 242. 

Committees of congress, 109. 

Committees of the whole. 111, note 1. 

Compulsory education, 806. 

Concurrent jurisdiction of state and federal courts, 212. 

Concurrent powers in general, 56 ; as to taxation, 120 ; as to trade and 
commerce, 142, 147. 

Condemnation, 253, 261, note 1. 

Confederation, articles of, 8, 8. 

Conflicts of authority, in general, 58. 

Congress (Albany) of 1754, 4; (New York) of 1765, 5; (Philadelphia) 
of 1774, 5; (do.) of 1775, 6. 

Congress, election of its members, 71; its sessions, 81; organization, 
81; powers over its own members, 103; judicial functions, 103; 
privileges and immunities of members, 104; their salaries, 105; 
procedure. 108; committees, 109, note; general powers, 116;fin^- 
cial tasks, 130; regulates immigration, 148; naturalization, 149: 
postoffices, 150; its power to build post-roads, 150, note 8;reg;i- 
lates weights and measures, 150; patents and copyrights, 151; its 
criminal jurisdiction, 153; treason, 154; impeachment, 158; pow- 
ers as to foreign relations. 163. 199, note 1 ; war powers, 164, 194; 
militia, 171; District of Columbia, 172; national property, 174; 
territories, 175; admission of new states, 185; controls suspen- 
sion of habeas corinw, 196; decides whether state government is 
republican in form, 238. 
Congressional elections. 71. 

Conscription, 167. . .^ 

Constitution, ratification of, 24; amendment of, 52, 262; rules iot w 
interpretation and construction, 55, 116. 



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INDEX. 863 

Constitutions (state), in general, 266; their constituent parts, 267. 

Constitutional conventions (state), 264. 

Contracts, 231. 

Controversies between states, 210. 

Conventions, constitutional (state), 264. 

Conventions, national, 87. 

Conventions of 1780 (Hartford), 13; of 1788 (Annapolis), 15; of 1787 
(Philadelphia), 16, 48. 

Copyrights, 152. 

Copyrights, international, 153. 

Criminal law, congressional powers concerning, 154. 

Criminal procedure, 258. 

Corporations, municipal, 324. 

Court-martials, 197, note 3. 

Courts, federal, jurisdiction of, 211 ; practice and pleading in, 221. 

Courts, state, 291. 

Courts, territorial, 98, note. 

Counties, 325. 

County officers, 326. 

Dartmouth College case, 235. 

Debt, public, 117; statistics of, 126, note 2. 

Debts of states, 279. 

Declaration of Independence, 7. 

Demonetization of silver, 124, note. 

Department of justice, organization and work of, 95, note. 

Departments, the executive, 95, and note 

Direct taxes, 73, note 2. 

District of Columbia, 172. 

Division of powers, 67. 

Divorce, national law of, suggested, 243. 

Due process of law, 252. 

Duties on exports, 118, and note. 

Duties on imports, statistics of , 121, note 2. 

Education, compulsory, 306. 

Election of president and vice-president, 85. 

Election, presidential, of 1876, 88. 

Elections, congressional, 71, 77. 

Elective judiciary (state), 292. 

Electoral college, 87. 

Electoral commission of 1876, 88. 

Electoral votes disputed, Missouri in 1821 ; Michigan in 1827 ; Wis- 
consin in 1857 ; Louisiana in 1873 ; Florida, South Carolina and 
Louisiana in 1877, 81. 



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364 INDEX. 

Electors, presidential, how chosen, 85. 

Ekuaudpation proclamation, 115, note 2: 195, note !• 

Eminent domain, 268, 261, note 1. 

Enabling acts, 187. 

Executive departments, 95, and note. 

Executive power, belongs wholly to president, 82. 

Executive power in the states, 285. 

Export duties, 118 and note. 

Extradition, in general, 245; cannot be compelled, 246. 

Ex post facto laws, 228. 

Factory laws, 283. 

Federal and state authority, limits of, 66. 

Federal courts, jurisdiction of, 211 ; practice and pleading in, 221. 

Federal government, powers of, 53 ; organization of, 66. 

Federal judges, salaries of, 106. 

Federation, early attempts at, 4. 

Fillmoro, Millard, 88. 

Finance, 117. 

Forestry, 282. 

Foreign relations, 168, 198. * 

Franchise may be given non-naturalized aliens, 72. 

Freedom of conscience, 223. 

Freedom of the press, 228. 

Freedom of speech, 228. 

Governor of a state, his functions, 280. 

Granger cases, 286. 

Grant, U. S., seeks third term nomination, 69, note; recommendB 

purchase of telegraph lines by government, 145, note 2 ; proposes 

constitutional amendment providing for non-sectarian public 

schools, 310, note 2. 
Habeas corpus, suspension of, 196. 
Hamilton, Alexander, writes the Federalist, 24; recommends a os- 

tional bank, 126, note 2. 
Hartford convention of 1780, 13. 
Hayes, R. B., how he became president, 90; vetoes law remonetuoBg 

silver, 124, note. 
Henry, Patrick, opposes unconditional ratification of the ooDstita- 

tion, 24. 
Historical method, 2. 
Homestead exemption, 298, note 2. 
Houston, Samuel, 103, note 2. 
niinois, minority representation in, 269, note. 
Inmiigration, 148. 



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INDEX. S65 

Impea<}hment, 158. 

Implied powers, 54, 116. 

Implied restrictions on state action, 271. 

Import duties, statistics of, 121, note 2. 

Imports, statistics of, 121, note 2. 

Income taxes (state), 301. 

Independence, declaration of, 7. 

Indians, 186, notes 2, 8 ; 248, note 4. 

Individual rights, 251. 

Instruction, right of, 78. 

Internal improvements, 150, note 8; 276, 280. 

Interior department, organization and work of, 95, note. 

International copyright, 153. 

Interpretation of constitution, rules for, 55, 116. 

Jackson, Andrew, his farewell address, 115, note 1 ; his views on in- 
ternal improvements, 150, note 3 ; demoralizes the civil service, 
208. 

Jefferson, Thomas, opposes the two-chamber system, 20. 

Johnson, Andrew, becomes president, 83 ; his conflict with congress, 
98, note. 

Johnston, R. N., elected vice-president by senate, 86, note 2. 

Judges, federal, hold office during good behavior, 98 ; their salaries, 
106. 

Judicial powers of United States, 60. 

Jurisdiction, concurrent, of state and federal courts, 212. 

Jury, in criminal cases, 259: in civil cases, 261. 

Kentucky and Virginia resolutions, 40, note 2. 

Laisser faire theory, 280. 

Land grants, 178, 276, note, 805. 

Landd, national, survey and sale of, 179, note. 

Law, due process of, 252. 

League (New England) of 1643, 4. 

Lee, Robert E., opposes secession, 157. 

Legal tender cases, 62, note. 

Legal tenders, 122, 125, note 3. 

Legislative methods (state), 272. 

Legislatures (state), in general, 268; cannot instruct senators, 80. 

License and business taxes (state), 302. 

Lincoln, Abraham, his emancipation proclamation, 115, note 2; 195, 
note 1. 

Madison, James, aids in writing the Federalist and carries ratifica- 
tion in Virginia, 25; his views on conditional ratification, 26; 



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366 INDEX. 

favors use of general expressions in constitution, 53 ; champions 
state rights, 61, note; declares legal tender notes unconstitn- 
tional, 125, note 8. 

Military academy, West Point, 168, note. 

Military affairs, 164, 192. 

Militia, 169, 230, 287, note 3. 

Minority representation (in Illinois), 269, note. 

Monroe, James, on internal improvements, 150, note 8. 

Mormonism, 226, note 2. 

Morris, Grouvemeur, favors ratification of constitution, 27« 

Municipal corporations, 324. 

National debt, statistics of, 126, note 2. 

Naturalization, 149. 

National banks, 122. 

National sovereignty, 50. 

National lands, survey and sale of, 179, note. 

National conventions, 87. 

Navigation laws^ 231. 

Naval academy, Annapolis, 168, note. 

Navy department, organization and work of, 95, note. 

New England league of 1643, 4. 

New states, admission of, 33, 76, note 2. 

New York and Virginia delay ratifying constitution, 24. 

New York congress of 1765, 5. 

Nobility, titles of, 225, note 4. 

Nomination of candidates for president, 87. 

Non-coercion theory, 41. 

Non-interference theory, 280. 

Normal schools, 310. 

Office, tenure of, 61. 

Organization of federal government, 66. 

Paper money in the United States, history of, 126, note 8. 

Parliamentary government, 92, 191, note. 

Parliamentary government in the states, 289. 

Pardons, 210. 

Patents, 151. 

People vs. population, 47. 

Petition, right of, 230. 

Philadelphia congress of 1774, 5. 

Philadelphia congress of 1775, 6. 

Philadelphia convention of 1787, 16, 48L 

Police powers of the states, 142. 



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Polk, J. K., oonsalts senate before making treaty, 201, note. 

Population and area, statistics of, 84. 

Population vs. people, 47. 

Powers of federal government, 53. 

Postoffice department, organization and work of, 95, note. ' 

Practice and pleading in federal courts, 221. 

Preamble to the constitution, 37. 

President, has all the executive power, 82; election of, 85; his salary, 
106; his inaugural address, 115; his general powers, 190; military 
powers, 192; war-powers, 194; cannot suspend habeas corpus, 
196 ; ix>wers as to foreign relations, 199 ; treaty-power, 200 ; ap- 
pointment of ofScials, 206; pardoning power, 210. 

Presidential election of 1876, 86. 
" electors, 86. 
" messages, 114. 
" proclamations, 115, 

Private property, taking for public use, 253; dedication to public 
uses, 254. 

Public debt, 117. 

Public use of private property, 264. 

Public works (state), 284. 

Railroads, 145, note 2, 255. 

Ratification of constitution, 24. 

Re-admission of states, 31, note, 47, 188, note. 

Real estate owned by United States, 174. 

Reconstruction, 47, 240. 

Reform, civil service, 106, note, 208, 256, 275, 290. 

Regulation of commerce, 136. 

Religious liberty, 225. 

Removal of causes, 216, note 2. 

Republican form of government, guarantee of, 236. 

Resulting powers, 116. 

Revenue, federal, statistics of, 121, note 2, 135. 

Searches, 257. 

Schools, normal, 310. 

Schools, public, 304. 

Schurz, Carl, his Indian policy, 136, note 8. 

Secession, duty of preventing it by force, 45. 
'* ordinances of, null and void, 46. 

** theoij of, 41. 

Seizures, 267. 

Senators, election of, 77; legislatures cannot instruct them, 78. 



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368 INDKX. 

Seward, W. H., his views on initiative of the house in making ap- 
propriations, 182; denies congressional jurisdiction of foreign 
affairs, 109 ; as governor of New York refuses request for extra- 
dition, 245. 

Silver demonetized, 134, note. 

Slavery, 18, 19, 175, 280. 

Social-political legislation, 288. 

Sovereignty of United States, 60. 

Special legislation (state), 275. 

State department, organization and work of, 95, note. 

State courts, 291. 
" debts, 279. 
" sovereignty, 89, 157. 

States, the, readmission of, 81, note, 47, 188, note; their police 
powers, 142; admisssion to the Union, 185; controversi^ be- 
tween them, 219 ; cannot be sued, 220 ; their citizenship, 248 ; 
constituent parts of their constitutions, 267 ; their legislative pow- 
ers, 268; implied restrictions upon them, 271; their legislative 
methods, 272 ; special legislation. 275 ; social-political legislation, 
288; impeachment, 285; the executive power, 285; the governor, 
286; the cabinet, 288; pai'Iiamentary government, 289; courts, 
291; amendment of constitutions, 292; taxes in general, 296; 
capitation tax, 299 ; income tax, 801 : license and business taxes, 
802. 

Statistics of population and area, 84; of imports, 121, note 2; of fed- 
eral revenue, 121, note 2, 135; of the national debt, 126, note 2; 
of appropriations, 185; of land-grants, 276, note. 

Stephens, A. H., opposes secession, 157. 

Supreme court, packed to reverse legal tender cases, 62, note; its de- 
dsions on constitutional questions, 68; limits of its jurisdiction, 
66, note ; its stability, 69 ; cannot compel extradition, 246. 

System of checks and balances, 60. 

Taxation, 117. 

" direct, 78, note 2. 

<< (state), 296, 299, 801, 802. 

Territories, 175. 

Territorial courts, 98, note. 

" government, 184, note. 

Test-oath cases, 224, note. 

Texas, 190. 

Telegraphs, 145, note 2. 

Tenure of office^ 69. 



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INDBX. 869 

,^St Tenure of o£Gloe act, 08, note. 
' ^ TiUes of nobility, 225, note 4. 

Tilden, S. J., his claims to the preeSdencj, 90l 

Town officers, 828. 

Townahipe, 827. 

Trade, regulation of, 186. 

Trade-marks, 153. 

Treason, 154. 

Treasury department, organization and work of, 95, notou 

Treaty-power, 200. 

Tyler, John, 83. 

Universities and colleges, 812. 

Vacancies in presidential office, 83, note. 

Veto, 113. 

Vice-presidents his functions, 82; election of, 85. 

Virginia and Kentucky resolutions, 40, note 2. 

Virginia and New York delay ratifying constitution, 24 

War department, organization and work of, 05, note. 

War powers, 104. 

Warrants, 258. 

Washington, G^eorge, on convention of 1787, 16; on ratification of the 
ocmstitution, 27 ; his farewell address, 115, note 1 ; consults senate 
before making treaty, 201, note 1. 

Webster, Daniel, on the territories, 183; on commercial treaties, 204. 

Weights and measures, 150. 

West Point military academy, 168, note. 
84 



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