con_us.htm

THE

CONSTITUTION

OF THE

UNITED STATES.

A CRITICAL DISCUSSION OF ITS GENESIS, DEVELOPMENT, AND INTERPRETATION.

JOHN RANDOLPH TUCKER, LL.D.,

LATE PROFESSOR OF CONSTITUTIONAL AND INTERNATIONAL LAW AND EQUITY, WASHINGTON AND LEE UNIVERSITY.

EDITED BY

HENRY ST. GEORGE TUCKER,

PROFESSOR OF CONSTITUTIONAL AND INTERNATIONAL LAW AND EQUITY IN WASHINGTON AND LEE UNIVERSITY.

VOLUME I.

CHICAGO: CALLAGHAN & CO.

1899.

BY CALLAGHAN & CO.

ADOPTING THE EXPRESSED INTENTION OF THE AUTHOR

THIS BOOK IS DEDICATED TO THE MEMORY OF HIS FATHER,

JUDGE HENRY ST. GEORGE TUCKER,

MEMBER OF CONGRESS, CHANCELLOR, AUTHOR, PRESIDENT

OF THE COURT OF APPEALS OF VIRGINIA, PROFESSOR

OF LAW IN THE UNIVERSITY OF VIRGINIA.

UPON WHOSE TOMB AT WINCHESTER, VIRGINIA, THE HAND OF FRIENDSHIP HAS INSCRIBED THESE WORDS:

IN MEMORY OF HENRY ST. GEORGE TUCKER, PRESIDENT OF THE COURT OF APPEALS.

LEARNED WITHOUT PEDANTRY: GRAVE WITHOUT AUSTERITY: CHEERFUL WITHOUT FRIVOLITY: GENTLE WITHOUT WEAKNESS: MEEK BUT UNBENDING: RIGID IN MORALS, YET INDULGENT TO ALL FAULTS

BUT HIS OWN. THE ELEMENTS OF GOODNESS WERE IN HIM COMBINED AND HARMONIZED IN A CERTAIN MAJESTIC PLAINNESS OF SENSE AND HONOR, WHICH OFFENDED NO MAN'S SELF-LOVE, AND COMMANDED THE RESPECT, CONFIDENCE AND AFFECTION OF ALL.

A FAITHFUL HUSBAND: A KIND AND PRUDENT FATHER: A GENTLE MASTER: A STEADFAST FRIEND:

AN ABLE AND DILIGENT PUBLIC OFFICER.

He lived without reproach And died without an enemy.

STATE JOURNAL PRINTING COMPANY,

PRINTERS AND STEREOTYPERS,

MADISON, WIS.

John Randolph Tucker was born at Winchester, Virginia, on the 24th of December, 1823, and died at Lexington, Virginia, on the 13th of February, 1897. He was the son of Henry St. George Tucker, President of the Court of Appeals of Virginia, and grandson of St. George Tucker, also a member of that court, and who was the author of "Tucker's Blackstone," the first commentary on the Constitution of the United States. During a long and active professional career, the author served for eight years as Attorney-General of Virginia and for twelve years as a Representative in Congress, during four years of which service he was Chairman of the Judiciary Committee of the House. From early life a close student of the Constitution and of the constitutional history of the United States, he had long cherished a purpose to write a commentary on the Constitution. His eminent public career brought him into living contact with many great questions on which he had read and thought deeply; and on his retirement from Congress in 1887 he hoped to take up his long-meditated work. The exaction of professional labors, to which were added from the year 1889 the re-assumed duties of the Chair of Constitutional and International Law, and Equity in Washington and Lee University, delayed the beginning of systematic work until the autumn of 1895, and his death in February, 1897, has, unfortunately, devolved upon me the task of carrying through

the press the manuscript which he left. This I have cheerfully assumed, not only from a sense of filial duty, but in obedience to his wish expressed but a few weeks before his death.

The author never revised the manuscript, which was left as written out from the notes of the stenographer to whom it was dictated. The transmission of ideas through an amanuensis, and the translation of stenographic symbols into English, must necessarily, at times, be at the expense of accuracy of expression and style, and I cannot hope to have freed the original from errors necessarily incident to such a mode of composition. My purpose has been at all times to preserve the original just as it was expressed by the author, rather than to attempt to correct any supposed blemishes of style or occasional obscurities of expression, or to change any colloquialisms more fitted for the lecture-room or the hustings than for the dignified pages of refined commentaries, preferring to retain such rather than incur the danger, by change, of imparting to any passage a meaning different from that which was intended.

When the Constitution proper is reached, it is treated consecutively, section by section, beginning with the Preamble and concluding with the Amendments; and wherever constructions at variance with those advanced by the author have been given to any clause by authors or judges, the views of such authors and the opinions of the judges bearing upon the decision are often given at length.

Clause 1 of section 4, article I, of the Constitution, the Fifteenth Amendment, and the second, third, fourth and fifth sections of the Fourteenth Amendment, are not treated in these pages, as the end came before they were reached.

The idea of supplying these omissions has naturally occurred to me, and I have not been free from doubt as to the propriety of publishing a work which was incomplete in these particulars. My doubts, however, have been resolved in favor of publishing the manuscript as I received it, for the reason that the omitted sections, in the minds of many, would not be considered of much practical value, in view of the adjudications of the courts; and especially for the reason that I felt that to supply them by the hand of any one other than the author, however well or however conformably to his well-known views such work might be done, would surely tend to weaken the force of the book.

Many valuable suggestions, in the course of the preparation of the work, have been freely given me by President Wm. L. Wilson, and I have been relieved of the burden of the preparation of the table of cases by Mr. E. Morgan Pendleton, of Lexington, Virginia, and have been the recipient of other valuable aid from him. To Mr. H. Parker Willis, my colleague in the Faculty of Washington and Lee University, my obligations are chiefly due for his intelligent suggestions and untiring labors, so freely given, embracing the entire preparation of the work, including the Index � the latter being entirely the work of his hands.

I cannot hope that this work which is now given to the public will be free from criticism, or that the position of the author on all subjects discussed will be accepted without dissent. The book is an expression of the views of the author, not merely his intellectual opinions, but his deep convictions, in the consistent exercise of which he lived and in the faith of which he died; and neither the dissent of friendship, nor the storm of popular indignation, nor yet the hope

of political preferment, ever shook his unswerving devotion to them. He religiously believed that the maintenance of these principles was necessary to the stability and preservation of the Union and the happiness and prosperity of the people, and that their rejection would as certainly result in tyranny, despotism and ultimate dissolution.

H. ST. GEORGE TUCKER. WASHINGTON AND LEE UNIVERSITY, LEXINGTON, VA., April, 1899.

Body-politic and Sovereignty defined, 1, 2. Relation of the Individual to the Body-politic, 3-11. Relation of Man to Society, 11. Limitation of the power of government over man, 12, 13. Government trustee for man, and man trustee of certain powers for his Creator, 14-18. Origin of Society and relations of individuals thereto, 19-23. Social liberty preferable to isolate liberty, 24, 25. Jus and Lex distinguished, 25. Jural rights in persona and in re attached to "social liberty," 26-34. Jural rights of man cannot be rightfully surrendered, 34, 35. Early society based on the patria potestas, 36-38. Why man sometimes acquiesces in tyranny, 38-41. Acceptance of the de facto social order as initial point necessary to inaugurate revolution, 41-44 Effect of Christianity on political philosophy, 41 46. Theory of the "Social Compact," 46-49. Uses of de facto government in effecting reform, 49-56.

Force needful for control of man consists of two factors, 58, 59. The relation of man to government, society, etc., 59, 60. Sovereignty and governmental powers distinguished, 60-66. Subordination of governmental powers to the Constitution, the foundation of American constitutional law, 66-68. Constitutions, how formed and adopted, 68-73. Division of powers of government, 73, 74

Scope of legislative powers, 75, 76. Privilege and Monopoly defined, 76-80. Polity of Individualism and of Paternalism, 80-85. How developed in ancient world. 80-88. Right of suffrage, a misnomer, 88, 89. Representation and taxation correlated as power

and right, 89-91. How affected by heterogeneous elements in the Body-politic, 91-93. How protect interests of minority against majority, 93-103. Historic origin of this principle traced, 103-106.

The Aryan race and its offspring, 107, 108. Greeks, Romans and Teutonic races, 109-112. The Saxons, and the development of their institutions, 112-117. The Norman Conquest and its effect on Saxon institutions from William I. to King John, 117-124. Thirteenth century, the vestibule of the English Constitution, 124. Edward I., the English Justinian, 124, 125. The Commons as a separate body, 125, 120. "De Tallagio non Concedendo," "De donis," "Quia emptores terrarum," 126. John Wycliffe, 128, 129. Beginning of modern history, Henry VII., 129-132. Position of Henry VIII. as affecting the Reformation, 132-139. Effect of Mary's reign and that of James I. upon the Reformation, 139-141. Culmination of struggle under Charles I., his death, and the protectorate of Cromwell, 142-146. Flight of James II. and Convention Parliament, 147-151. Epitome of the causes for the Revolution stated in Declaration of Rights, 151-153. Reform bill of 1832, 153, 154. Analysis of constitutional monarchy of England, 155-159. The two Houses of Parliament, 159-162. The power of the Crown, 162-170. Conservative influences in the British government which check the radical tendencies of the House of Commons, 170-176. Estimate of British Constitution, 176, 177.

Two schools of thought on the relation of the States to the Union, 178, 179. Five important eras in American Constitutional development, 179. The Colonial Era, from 1607 to September 5, 1774, 179-203. The Continental Congressional Era, from September 5, 1774, to March 1, 1781, 203-239. The Confederation Era, from March 1, 1781, to March 4, 1789, 239-252. The Constitutional Era, from March 4, 1789, to 1861, 252-324 Who ordained the Constitution, and what are the relations of the States to the Union, 256-318.

The two rival plans submitted to the convention, 326, 327. The first compromise, 327-332. The second compromise, 332-337.

Three theories as to the right of secession, 338, 339. Judicial view of effect of the Civil War, 340. Effect of thirteenth, fourteenth and fifteenth amendments upon the constitutional relations of the States to the government of the United States, 341-348.

Method of arrangement, 349. Principles of interpretation, 350-364. Canons of construction, 365-380. Construction of the words "necessary and proper," 366-375. The Constitution the supreme law of the land, 375-380.

The preamble of the Constitution, 381-389. The three departments of the Federal government, 389-392. The Legislative department, 392. Exclusive investiture of all legislative powers in Congress, 392. Members of House of Representatives chosen how; by whom? 393, 394 Who may be a member of, 394, 395. Representatives and direct taxes apportioned how, 395, 396. Vacancies in House of Representatives, how filled, 398, 399. Members of the Senate chosen how; by whom, 400-403. Vacancies in, how filled, 403, 404 Qualifications for Senators, 405, 406. Duties of the Vice-President, 406, 407. Power to try all impeachments rests with the Senate, 408-412. Who subject to impeachment, 412-416. What offenses impeachable, 416-423. Mode of practice in cases of, 423-425.

Congress, when to assemble, 426. What necessary to constitute a quorum of each body, 427-433. What power in either body, without the concurrence of the other, to adjourn, 433, 434. Power of House over witnesses and intruders upon its deliberations, 434-437. Members of Congress privileged from arrest, 438-440. Their freedom of speech in debate, 440, 441. Restriction upon their power of holding office, 442-446. All bills for raising revenue must originate in the House, 446-452. The veto power; its purposes, 452-456. The powers of Congress, 456. To lay and collect taxes, 457-459. Duties, imposts, excises, defined, 459-461. Direct taxes to be in proportion to population, etc., 461-464. The

tax power in the United States not exclusive of State power on same subjects, 466-468. The words "to pay the debts," etc., do not constitute a substantive grant of power, 470-477. Views of Madison and Hamilton on the words "common defense and general welfare," 477-492. Bounties on products � Municipal aid to private enterprises, 493-497. Tax power not to be used for other than revenue purposes, 497-508. To borrow money on the credit of the United States, 508-512. To coin money and regulate the value thereof, 512-516, 563. To charter a bank, 516-518.

To regulate commerce, etc., 519, 558. To "establish a uniform rule of naturalization," 558, 559. To control bankruptcy, 559-563. To punish counterfeiting, 564, 565. To establish post-offices, etc. 565-572. Power over copyrights and patents, 572, 573. To establish inferior courts, 573-576. To declare war, raise and support armies, provide and maintain a navy, etc., 576-581. Power over the militia, etc., 581-597. Over the seat of government, 597-600. The co-efficient power, 600-602. To admit new States, 602-610. New States, of what constituted and how admitted, 610, 616. Power to punish treason, 616-624. Power over public acts, records, etc., 624-627. Privileges and immunities of citizens, 627-634 Guarantee of republican form of government, 634-642. Express limitations on Federal power, 642-652. Prohibition against bills of attainder and ex post facto laws, 652-666.

The First Amendment, 667-671. The Second and Third Amendments, 671, 672. The Fourth Amendment, 672, 673. The Fifth Amendment, 673-678. The Sixth Amendment, 678-682. The Seventh Amendment, 682-686. The Eighth Amendment, 686, 687. The Ninth Amendment, 687-689. The Tenth Amendment, 689-692.

The President possesses executive powers and none other, 693, 694. The President an officer of the United States, 694. Manner of electing; by electors, 695-701. Change in mode of elect-

ing by Twelfth Amendment, 701, 702. The Tilden-Hayes contested election, 702-704. Number of electoral votes necessary to an election, 704. When may the House elect, 705. Mode of election of Vice-President, 705-708. Criticism of electoral college as a mode of electing, 709, 710. Eligibility to the office of President, 711. Disability of President to discharge duties of office, 711-714. Powers and duties of President, 715-723. Extent of power of the President and Senate to make treaties, 723-732. Power to nominate, etc., ambassadors, etc., 732-740. Power to fill vacancies, etc. 740-743. Duty to give Congress information by message, etc.. 743, 744. Power to receive ambassadors, etc., 744-748. Duty to see that laws are faithfully executed, 748. May be impeached, 748. Examples of questionable exercise of power by Presidents, 749-752.

Judicial power vested in one Supreme Court, 755. Inferior courts, 756. Extent of judicial power of United States, 757-760. Jurisdiction of United States courts, 760-769. Extends to all cases in law and equity, 769. Cases affecting ambassadors, etc., 770-772. Admiralty and maritime jurisdiction, 772-781. "Controversies to which the United States shall be a party," 782-784. "Controversies between two or more States," 784, 785. Between "a State and citizens of another State," 785-797. Appellate jurisdiction of Supreme Court over judgments of State appellate courts, 798-800. Can any part of judicial power of the United States be vested in State courts? 800-804. Can a State court enforce a right arising under a law of the United States? 804-810. Power of removal of cases from State to Federal courts, 810-815. Right of habeas corpus branch of appellate jurisdiction of the Supreme Court, 815-819.

Two classes of � absolute and qualified, 821, 822. Absolute � no State shall "grant letters of marque and reprisal," 823. Or "coin money," 823. Or "emit bills of credit," 824, 825. Or "make anything but gold and silver coin a tender in payment of debts," 825-827. Or "pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts," 827-840. Or "grant any title of nobility," 840, 841. Qualified limitations upon, 841. No State shall without consent of Congress lay any imposts or duties, etc., 841-844. Or, "without consent of Congress, lay any

duty of tonnage," 844. Or "keep troops or ships of war, in time of peace," etc., 844-846. Effect of post-bellum amendments on the powers of the States, 846-852. Privileges or immunities of citizens of the United States not to be abridged by the States, 852-854 Due process of law and equal protection of the laws discussed, 854-872.

Acheson v. Huddleston, 571. Akerly v. Vilas, 802. Alabama v. Georgia, 784. Alaska, The, 776. Alexander's, Mrs., Cotton, 591. Algernon, Sidney's, Case, 873. Allen v. Inhabitants of Jay, 78, 496.

v, Newberry, 775, 778. Allis v. United States, 681, 685. Allison v. United States, 686. Almy v. California, 660, 842. Amer. Ins. Co. v. Canter, 609, 756,

Amer. P. W. v. Lawrence, 871. Amer. Pub. Co. v. Fisher, 609. Ames v. Kansas, 798, 804, 805. Anarchist Cases, 666. Anderson v. Dunn, 435.

v. United States, 553. Anderson's Case, 680. Andrews v. Wall, 778. Antoni v. Greenhow, 767, 786, 789,

Arrowsmith v. Harmoning, 869. Arthur v. Morrison, 508. Asher v. Texas, 544. Asylum v. New Orleans, 836. Atkinson v. Cummins, 612. Atlee v. Packet Co., 779.

Attorney-General v. Stuart, 183. Avegno v. Schmidt, 623, 720. Ayres, In re, 768, 786, 789, 816.

Bailey v. Magwire, 866. Bain's Case, 674, 676, 768, 815. Baldwin v. Bank of Newberry, 562.

v. Supervisors, 465. Bank of N. A. v. Cooper, 527. Bank Tax Case, 465. Bank of U. S. v. Dandridge, 830.

v. Baltimore, 600. Barron v. Baltimore, 666, 692. Bartemeyer v. Iowa, 547. Bass v. Fontleroy, 833. Bayliss v. Insurance Co., 684. Beach v. Trudgain, 871. Beall v. New Mexico, 609. Beard v. Federy, 797. Beatty v. Knowler, 836. Beer Co. v. Massachusetts, 547, 831. Beers v. Haughton, 562. Belfast, The, 777, 778.

Bell's G. R. Co. v. Pennsylvania, 859. Benner v. Porter, 612. Bigelow v. Forrest, 622. Binghamton Bridge, The, 831, 836. Birtwhistle v. Vardill, 201. Bissell v. Heyward, 594. Blackwell, The, 778. Blake v. McClung, 628, 857.

v. United States, 738. Blankard v. Galy, 183, 184. Bloodgood v. Mohawk R. Co., 870. Blount v. Walker, 626. Board of Liquidation v. McComb,

Boese v. King, 562. Bollman, Ex parte, 609, 619, 621, 647. Boom Co. v. Patterson, 809, 870. Borough v. Warwick, 439. Boss v. Preston, 771, 772, 798, 804. Bos worth's Case, 623. Bowman v. Railroad Co., 534, 547. Boyce v. Tabb, 803. Boyd v. Nebraska, 759, 769.

v. United States, 666, 673, 676. Boyer, Ex parte, 776, 778. Boyle v. Zacharie, 561. Bradwell v. State, 345, 853. Brennon's Case, 543. Bridge Co. v. United States, 551. Bridges, Ex parte, 811. Brimmer v. Rebman, 542. Briscoe v. Bank of Kentucky, 361,

Buck v. Colbath, 805. Buffalo City, In re, 677. Burford, Ex parte, 672. Burgess v. Seligman, 803. Burns v. Missouri, 825. Buron v. Denman, 804. Burroughs v. Peyton, 580. Burrow-Giles L. Co. v. Sarony, 573. Bush v. Kentucky, 873. Bushnell v. Kennedy, 788. Butch. U. etc. Co. v. Crescent City,

Cadwalader v. Zeh, 508. Calder v. Bull, 361, 656. Caldwell v. Texas, 868. California v. Pacific R. Co., 572. Callahan v. Myers, 573. Callan v. United States, 681.

v. Wilson, G09. Calvin's Case, 183, 185. Cameron v. Hodges, 795. Campbell v. Hall, 183, 185. Cannon v. New Orleans, 844

v. United States, 669. Cardwell v. Amer. Bridge Co., 612. Carpenter v. Strange, 626. Carrington v. Pratt, 778. Carroll v. United States, 593. Cary v. Peters, 796. Castle v. Bullard, 684. Chapman, In re, 435. Chappedelaine v. De Chenaux, 797. Charles River Br. Co. v. Warren Br.

Co., 835, 866. Cheever v. Wilson, 626. Chemung Canal Co. v. Lowery, 628. Cherokee Nation v. Georgia, 558,

v. Wiggins F. Co., 626. Chinese Exclusion Case, 552. Chinese Cases, 552. Chisholm v. Georgia, 312, 385, 758,

Choffin v. Taylor, 768. Christmas v. Russell, 626. Christy, Ex parte, 802. Civil Rights Cases, 850, 857, 858. Claflin v. Houseman, 801, 804. Clark v. Barnard, 835. Clinton v. Englebrecht, 820. Coe v. Erroll, 549, 550. Coffin v. Coffin, 440. Cohens v. Virginia, 599, 767, 772,

786, 788, 799, 800. Cole v. La Grange, 79, 870. Coleman v. Tennessee, 594, 819. Collector v. Day, 315, 317, 361, 372,

464, 512, 536, 691. Collins v. New Hampshire, 534. Colson v. Lewis, 797. Columbus So. Ry. Co. v. Wright,

v. Dry Dock Co., 779, Corbett's Case, 404. Corfield v. Coryell, 532, 627, 855. Corsair, The, 776. Coster v. Greenhow, 786. Counselman v. Hitchcock, 676. Coupon Cases, 514, 791, 829. Covell v. Heyman, 762. Craemer v. Washington, 676. Craig v. Missouri, 514, 824, 825. Crandall v. Nevada, 852. Crespigny v. Wittennoon, 382. Cross v. Harrison, 609, 612, 749.

v. North Carolina, 869, 871. Crowley v. Christenson, 854. Crutcher v. Kentucky, 542, 543, 545,

v. Micou, 622. Debs, In re, 581. Delafield v. Illinois, 801. Delaware R. Tax Case, 834, 866. De Lovio v. Boit, 774. Denny v. Bennett, 839. Dent v. West Virginia, 854. Dial v. Reynolds, 801. Diggs v. Wolcott, 805. District of Columbia Com'rs v. B.

& P. R. Co., 599. Divina Pastora, The, 746. Dobbins v. Commissioners, 465. Doe v. Beeby, 612. Dollar Savings Bank v. United

States, 861. Dooley v. Smith, 509. Dorr, Ex parte, 801. Dred Scott v. Sanford, 343, 372, 604,

Eldridge v. Trezevant, 863. Elk v. Wilkins, 559, 852. Elmore v. Grymes, 684. Elmwood v. Marcy, 802. Ernmert v. Missouri, 543. Entic v. Carrington, 573. Essex Pub. Rd. Bd. v. Shinkle, 832,

v. Jefferson Police Jury, 840. Fitts, etc. v. McGhee, etc., 768, 791. Fleming v. Page, 609. Fletcher v. Peck, 33, 77, 377, 493, 653,

655, 828, 829. Florida v. Georgia, 784, 787. Ft. Leavenworth R. Co. v. Iowa, 782.

v. Neilson, 728, 816. Fox v. Ohio, 565, 666. Freeland v. Williams, 658, 835. Freeman v. Howe, 762. French v. Hay, 801, 802.

Gavinzel v. Crump, 594. Gay v. United States, 502. Gelpeke v. Dubuque, 803. Gelston v. Hoyt, 805, 816. Genessee Chief, The, 774, 775, 776,

v. Philadelphia, 361, 551. Giozza v. Tiernan, 525, 548. Givin v. Wright, 836. Glide, The, 779, 781. Gloucester Ferry Co. v. Pennsylvania, 542.

Gold Washing Co. v. Keyes, 809. Goszler v. Georgetown, 834. Grand Rapids Boom. Co. v. Jarvis,

v. Van Buskirk, 626. Greenwood v. Freight Co., 831, Groves v. Slaughter, 555. Gulf, etc. Ry. Co. v. Hefley, 553. Gunn v. Barry, 838, 840. Gurr v. Scadds, 508. Guy v. Baltimore, 546, 550, 629.

Hagan v. Lucas, 762, 805. Hagar v. Reclamation Dist., 861. Hagood v. Southern, 789, 791. Haines v. Carpenter, 801.

Hall v. De Cuir, 534, 857. Hall v. Wisconsin, 831. Ham v. Louisiana, 787. Hamblin v. West. Land Co., 768. Hampton v. McConnell, 626. Hanrick v. Hanrick, 810. Harris v. Hardeman, 626. Harrisburg, The, 776. Hart v. United States, 720. Hartman v. Greenhow, 767, 838. Hartranft v. Wiegman, 508. Hartung v. People, 657. Hauenstein v. Lynham, 732, 769. Hawkes v. New York, 829. Hawthorne v. Calef, 840. Hayes v. Missouri, 869. Haygood v. Southern, 786. Head v. Armstrong, 866. Head-money Cases, 523, 525, 527, 728. Henderson Br. Co. v. Henderson,

Hennen, Ex parte, 735, 736, 740. Hennington v. Georgia, 543. Hepburn v. Ellzey, 600, 787, 792, 798.

Hicks v. United States, 686. Hine, The, v. Trevor, 776, 779, 781. Hodgson v. Vermont, 871. Holden v. Hanry, 854.

v. Minnesota, 871. Hollinsworth v. Virginia, 786. Holmes v. Jennison, 630. Home v. Freeman, 805. Home of Friendless v. Rouse, 836. Home Ins. Co. v. New York, 864. Homestead Cases, 839. Hooper v. California, 545, 557, 628. Hopkins v. United States, 553. Hopt v. Utah, 657. Hornbuckle v. Toombs, 820.

v. Tex. Cent. Ry. Co., 658. Howard v. Bugbee, 838. Huiling v. Kaw Val. R & I. Co.,

Hunt v. Hollinsworth, 758. Hunter v. Martin, 799. Hurtado's Case, 871. Huse v. Glover, 612. Hylton v. United States, 462, 659.

v. Twentyman, 797. J. R. & K. Co. v. Turner, 870, Jecker v. Montgomery, 819. Jefferson Br. Bank v. Skelley, 803,

v. United States, 575, 609. Juillard v. Greenman, 367, 509. Julia Bldg. Ass'n v. Bell Tel. Co.,

Keith v. Clark, 590, 594, 829. Kemmler, In re, 853. Kemper v. Hawkins, 53, 70. Kendall v. United States, 796. Kentucky v. Dennison, 302, 630, 785. Keyes v. United States, 738. Kidd v. Pearson, 547. Kiely v. Carson, 435. Kilburn v. Thompson, 435. Kimmish v. Ball, 542. King, The, v. Passmore, 830. King v. United States, 861. Kingsbury's Case, 630. Knox v. Lee, 367, 371, 509, 518, 529. Kohl v. United States, 870. Koontz v. B. & O. R. Co., 809, 810. Korn v. Mut. Ass. So. of Va., 833. Kring v. Missouri, 657, 803. Kunzler v. Kohans, 563.

Lee v. United States, 783, 791. Leeper v. Texas, 868. Leffingwell v. Warren, 803. Legal Tender Cases, 77, 78, 361, 367,

Leisy v. Hardin, 548. Leloup v. Port of Mobile, 544. Lemmon Slave Case, 554. Lem Moon Sing v. United States,

Leon v. Galceran, 778, 779. Leroux v. Hudson, 801. Lexington, The, 774. License Cases, 541, 545, 547. License Tax Cases, 659. Litchfield v. Webster Co., 791. Livingston v. Moss, 802. Loan Ass'n v. Topeka, 33, 78, 466,

v. Woodson, 869. Lovejoy v. United States, 685. Lowell v. Boston, 78, 496. Luther v. Borden, 641, 651, 803, 817. Luxton v. N. R. Br. Co., 572, 870. Lyng v. Michigan, 544.

Machine Co. v. Gage, 543. Mackin v. United States, 674. Maddock v. Magone, 508. Magnolia, The, 773, 774, 775. Magone v. Heller, 508.

748, 754, 768, 772, 798. Marshall v. B. & O. R. Co., 794. Martin v. Hunter, 288, 360, 490, 766, 767, 769, 798, 799, 800.

McAllister v. United States, 609. McCall v. California, 544. McCardle's Case, 639, 643, 818. McCulloch v. Maryland, 294, 361,

511, 516, 518, 690. McCracken v. Hayward, 838. McCready v. Virginia, 629, 778. McElrath v. United States, 684. McElvaine v. Brush, 687, 871. McGahey v. Virginia, 790, 791, 803,

829, 838, 840. McGee v. Mathis, 829. McGuire v. Card, 775. McIntyre v. Wood, 796. McKim v. Voorheis, 801. McNeil, Ex parte, 801, 804 McNulty v. Batty, 612. Medley's Case, 658, 659, 871. Memphis R. Co. v. Commissioners,

Merryman, Ex parte, 648, 650. Milburn, Ex parte, 815. Miller v. United States, 591, 681. Milligan, Ex parte, 364, 372, 595,

Minor v. Happersett, 345, 854. Mississippi v. Johnson, 748, 817. Missouri v. Iowa, 784.

v. Nebraska, 870. Mitchell v. Thornton, 870. Mobile v. Kimball, 525, 526, 546, 550,

609, 666, 832. Morrisey, In re, 580. Moses Taylor, The, 779, 781, 804 Mostyn v. Fabrigas, 804. Moultrie Co. v. Savings Bank, 828. Mt. Pleasant v. Beckwith, 833. Mud Island Case, 780. Mugler v. Kansas, 534, 546, 854. Mullan v. United States, 738. Muller v. Daws, 794. Mumma v. Potomac Co., 831. Murdock v. Memphis, 768. Murphy v. Ramsay, 609, 658, 669. Murray's Line v. Hoboken L. & I.

v. County of Yankton, 609. Nations v. Johnson, 626. Neagle's Case, 526, 786, 813. Neal v. Delaware, 873. Neil v. Ohio, 571. New Hampshire v. Louisiana, 786,

Nix v. Hiden, 503. Noonan v. Bradley, 762. N. & W. R. Co. v. Virginia, 54a North Carolina v. Temple, 786,

O. & M. R. Co. v. Wheeler, 794, 795. Olcott v. Supervisors, 803. Orleans, Steamer, v. Phoebus, 775. Osborne v. Bank of United States, 465, 518, 789, 798.

v. Burgess, 529, 660. Pac. Exp. Co. v. Seibert, 544. Pac. Ins. Co. v. Soule, 460, 462. Pac. R. Co. Removal Cases, 572. Packer v. Bird, 853. Packet Co. v. Catlettsburg, 546, 661, 844

v. St. Louis, 546. Page v. Burgess, 465. Palmer v. Barrett, 782. Pargoud v. United States, 593. Parks, Ex parte, 815. Parsons v. Bedford, 684. Passenger Cases, 523, 524, 527, 532,

Patterson v. Kentucky, 551. 573. Patton v. United States, 508. Paul v. Virginia, 532, 557, 628, 855. Paup v. Drew, 829. Peck v. Jenness. 801, 802, 805. Peete v. Morgan, 539, 844. Penhallow v. Doane, 234, 235, 385. Penn v. Lord Baltimore, 784. Penniman's Case, 839. Pennoyer v. McConnaughy, 790,

Br. Co., 551, 661. Pennsylvania Co., In re, 810. Pennsylvania R. Co. v. Miller, 834,

549, 687, 692. Peters v. Bain, 804. Philadelphia v. Fox, 833. Pierce v. Carskadon, 655.

v. Louisiana, 546, 550. Planters' Bank v. Sharp, 840. Plessy v. Ferguson, 858, 859. Plumley v. Massachusetts, 542, 549,

Plymouth, The, 779. Poindexter v. Greenhow, 789. Pollard v. Hagan, 237. Pollock v. Farmers' L. & T. Co., 378,

v. Charleston, 544 Pound v. Turk, 612. Powell v. Pennsylvania, 466. Presser v. Illinois, 666, 672, 853. Prigg v. Pennsylvania, 632, 634. Prize Cases, 588, 645, 647, 746. Protector, The, 5S6.

Providence Bank v. Billings, 836. Provident Institution v. Mayor, 862. Pullman Car Co. v. Pennsylvania,

Railroad Co. v. Alabama, 526, 545. v. Arnoud, 794. v. A., T. & S. F. R. Co., 794. v. Beckwith, 865, 868. v. B. & C. R. Co., 802. v. Board of Trempealeau Co.,

v. Bosworth, 592, 593, 622, 720. v. Bristol, 834, 867. v. Brown, 858. v. Chicago, 873. v. Commissioners, 832. v. Dennis, 836. v. Fitzgerald, 810. v. Fuller, 545, 834. v. Georgia, 802. v. Gibbs, 864. v. Haber, 542. v. Humes, 865, 866. v. Husen, 542. v. Illinois, 857. v. Interstate, etc. Co., 551. v. Iowa, 782, 862, 867. v. Johnson, 509. v. Keedy, 830. v. Keyn, 779. v. Letson, 794 v. Litchfield, 836. v. Low, 598. v. McClure, 828. v. Mackey, 865, 866. v. Mich. C. R. Co., 794 v. Miller, 834, 837, 867. v. Minnesota, 866, 867. v. Mississippi, 857, 858. v. Nebraska, 870.

v. Woodson, 869. Railroad Commission Case, 865. Railroad Tax Case, 864 Randall v. B. & O. R. Co., 684,

Reggel, Ex parte, 630. Removal Cases, 802, 810. Renaud v. Abbott, 626. Rex v. Creesy, 440.

Rice v. Railroad Co., 836. Richmond & A. R. Co. v. R. A. Patterson Tobacco Co., 553. Riggs v. Johnson, 802. Rio Grande R. Co. v. Gomila, 762,

Roberts v. Reilley, 630. Robinson v. Cease, 794, 795. Robinson, Ex parte, 811. Rose v. Hemley, 746. Rosen v. United States, 868. Ross, In re, 682. Rowland, Ex parte, 815. Royall v. Virginia, 526. Rumpf v. Commonwealth, 801. Rundle v. Canal Co., 794 Runkle v. United States, 718.

Saltenstall v. Wiebush, 508. Sands v. M. R. Mfg. Co., 612. Santa Clara Co. v. S. Pac. Ry. Co.,

Santissima Trinidad, The, 774. Sapphire, The, 792. Satterlee v. Mathewson, 561, 656. Schmieder v. Barney, 508. Scholey v. Rew, 460, 462. Schollenberger v. Pennsylvania,

Schoonmaker v. Gilmore, 779. Scotland, The, 776. Scotland County v. Thomas, 832. Scott v. Jones, 787.

v. Sanford, 796. 851. Searight v. Stokes, 571. Semple v. Hagar, 797. Sharf & Hansen v. United States,

v. Schiff, 622, 720. Shipley v. B. & O. R. Co., 677. Shively v. Bowlby, 609. Siebold. Ex parte, 815. Silver Co. v. Pennsylvania, 864. Simmons v. United States, 676, 685. Sinking Fund Cases, 571, 832, 840. Slaughter House Cases, 345, 346, 361,

532, 552, 628, 852, 853, 855. Slidell v. Grandjean, 836. Slocum v. Maybury, 805. Smith v. Brown, 184.

State Freight Cases, 527, 544 State Tonnage Tax Cases, 545, 844 Steamboat Co. v. Chase, 779. Steamship Co. v. Jolliffe, 546.

Steamer St. Lawrence, 775. Stevens v. Griffith, 594. Stewart v. Salaman, 594. Stockdale v. Hansard, 175, 435. Stone v. Mississippi, 834.

Supervisors v. United States, 854. Suydam v. Williamson, 803. Swann v. Arthur, 508.

v. Taintor, 630, S31. Teal v. Felton, 801, 805, 809. Tel. Co. v. Massachusetts, 864.

v. Whitworth, 836. Terrett v. Taylor, 829. Terry v. Anderson, 838. Texas v. White, 297, 315, 316, 317,

v. So. Pac. Ry. Co., 627. Thaxton v. Williams, 830. Thomas Gibbous, The, 578. Thompson v. Androscoggiu River Imp. Co., 677.

v. Whitman, 626. Thorington v. Smith, 594. Tinsley v. Anderson, 859. Tomlinson v. Branch, 791.

Town of Pawlet v. Clark, 797, Townsend v. Todd, 802. Trade-Mark Cases, 377, 573. Transportation Co. v. Wheeling,

Trebilcock v. Wilson, 511, Trevett v. Warden, 385. Trustees v. Indiana, 833. Tuckahoe Can. Co. v. Tuckahoe R,

v. Maryland, 541, 843. Turpin v. Burgess, 465, 529, 660. Twitchell v. Commonwealth, 666,

United States v. Wagner, 782. v. Walker, 835. v. Wilson, 719, 801. v. Wong Kim Ark, 552, 609, 852. v. Yorba, 746.

Vallandingham's Case, 595. Vance v. Vandercook Co., 534. Vandezie v. McGregor, 671. Veazie Bank v. Fenno, 460, 462, 518. Venice v. Murdock, 803. Vicksburg, etc. R. Co. v. Dennis, 836.

v. Mayor, 526, 541, 549. Warren v. Paul, 464. Watkins, Ex parte, 815. Watson v. Jones, 801.

v. Virginia, 532, 573. Wells, Ex parte, 719. Western v. Charleston, 465. West. U. Tel. Co. v. Alabama, 525, 544.

of Trempealeau County, 831. Wheaton v. Peters, 573, 802. Wheaton & Donaldson v. Peters &

v. Mississippi, 70, 854. Williamson v. New Jersey, 868. Wilson, Ex parte. 674, 786. Wilson v. B. C. & M. Co., 551.

v. Duluth, 551. Wise v. Withers, 805, 818. Withers v. Buckley, 612, 666. Wong Wing v. United States, 609. Wood, In re, 687, 871. Woodruff v. Parham, 545, 557, 660, 842.

v. Trapnall, 518, 829, 836, Worcester v. Georgia, 558. Worthington v. Robbins, 508. Wynehamer v. People, 677.

§ 1. Political Science should be based upon principles established by the use of the Inductive Method. When speculative theories yield to facts, this science will become philosophic, and will have practical value. It is a practical science and not a theory. The relations involved are infinite, and the social machinery needed for their regulation is too intricate to be constructed upon any other foundation than experience.

§ 2. Politics or the Science of the State, deriving its name from po/lij; (city), or politei/a (constitutional government of a state),¹ which has its root in polu/j, the many, is the Philosophy of the Corporate Unity of the many, bound together in society. This incorporate being, e pluribus unum, we call the State, the Commonwealth, the Nation, the Body-politic.

The same root is probably found in the Roman populus, perhaps in the Res publica. There is also another word, civitas, which is more restricted, importing the whole body of citizens, and is in contrast with Aristotle's plh~qoj politw~n, or mass of citizens governing the State; involving a distinction hereafter to be noticed specially.

Cicero defines populus thus: "Populus autem non omnis hominum, coetus, quoque modo conjugatus, sed coetus multitudinis juris consensu et utilitatis communione sociatus."²

It is not an aggregation casually brought about, but a coetus, a going together of the many; sociatus, companioned

and allied; juris consensu, by the sanction of law; and utilitatis communione, with a community of benefit, making thus a common-weal, or Res-publica.

This definition is valuable, while not in accord fully with modern thought. It defines the civil body politic, a generic term, which best describes that which is often called State (Stare) from its territoriality as distinct from a nomadic body; � or nation (nascor-natus) because evolved from the family nucleus; or a common-wealth because constructed for the common weal. It is a political body of citizens united for one social life; not the plh~qoj politw~n of Aristotle, which meant only the mass of voters in the state � but the whole body of citizens organized into a state.¹

§ 3. And lot it be noted here that the Body-politic is not the Government, nor the persons admitted to participate in the functions of Government � but it is the whole body of persons politically associated. The organic force of the Body-politic, that social power which controls persons and things, for peace, order and the common weal, is what we call Government. The expression of that force is Law.

This distinction between the Body-politic and the government is fundamental and essential; especially in America, where it has been asserted and maintained with peculiar emphasis, though germinally it may be traced in older institutions.

§ 4. A Body-politic may then be defined to be the organism in unity of the many human beings, associated by jural bond for the objects of the social state in which is vested all rightful political power over its members for the common good of all. This rightful political power so vested, we call Sovereignty, or Supremacy over men and things. In this definition there are two qualifying words as to the political power of the Body-politic: vested and rightful. The one indicates the derivation, the other the limitation, of this supremacy or sovereignty.

relation to the Body-politic, which is rather a branch of Sociology, but is properly preliminary to the consideration of the relation between the Body-politic and the government, which belongs to the science of Constitutional Law. Both questions are embraced in Political Science, and the latter question cannot be understood until the first is fully comprehended.

§ 5. The only religious creed which will be assumed as true in this discussion will be that there is a God, who is the Creator and the Governor of the Universe. The principles established, while they will accord with the Christian system, are not deduced from it as an hypothesis, but will result from independent reasoning.

§ 6. What is the proper relation of the Individual to the Body-politic? This is the primal question in our inductive process as applied to Political Science. A condensed answer to this question will be attempted, without going into details, and without much reference to the dissentations of authors.

Many writers, abroad and in America, have held the theory of the Social Compact between men as the basis of Society, and as the fundamental postulate of all political philosophy. This theory is fiction, and as an hypothesis is unsound, and must lead to error.

Of such compact history makes no record; and none could have existed. Man-right in Society is not derived from, nor secured by, any contract between men. Such contracts of men already in social union have been formed, and constitutions and governments have been established by quasi agreements, after Society had long existed; but men have never, when out of Society, entered into it by any compact or agreement. Upon the institutions of Society, as un fait accompli, men have engrafted a formal constitution for the Body-politic, which by consent express, or implied from acquiescence, has been recognized as based on their consent: but institutions historically have always preceded constitutions. The theory predicates an independent isolation of men, and then

assumes an exodus from isolation into social union upon the terms of a compact, by which the Body-politic is created, and its authority is made legitimate.

This theory was the revolt of liberty against the claims of the advocates of despotism, and sought to justify the subversion of established systems of government by the hypothesis of a compact originally made, of which, when broken on the one part, the repudiation by the other was justified. This motive, however it may excuse the fallacy, cannot justify us in adhering to it, especially when, as will be shown, it may be displaced by a more effective doctrine in behalf of free institutions, based upon undoubted and historic foundations.

§ 7. If we suppose the race began with a single pair,¹ man and woman, they were bound in social relations by quasi consent, and this pair constituted the dual-unit of humanity. Their union is the ordination by God, and the impulse of natural instincts.² Every man (except this primal pair) entered society by birth, not under contract. He came without his own volition, by the will of his parents, and under the order of nature. At his coming, he is without will, incapable of contracting, weak and the most helpless offspring in the animal kingdom.

A canon of this School of thought, and perversive of that embodied by Mason in the Bill of Rights of Virginia, June 12, 1776, and by Jefferson in the Declaration of Independence, July 4, 1776, is thus formulated: "All men are born free and equal."

This is utterly untrue � in form and substance. The human being is born not in manhood, but in feeble infancy. He is not free, when born, but subject to a power he cannot resist or abridge; and freed from which, he would perish. Nature ushers him into life under this imperative condition, and assigns him to this subjection, as essential to his life and well-being. To him, this despotism is a blessing, and freedom would be a curse.

He comes not isolate, but into a social state, to which he did not consent, constituted by others, and from which he cannot fly. Pillowed on a mother's heart, and protected by a father's thrift and courage, he is born at once the subject of their authority, and the dependent object of their care. The want of a social compact is well supplied in the provision of Nature for him; � for under parental control, he is secured from parental tyranny by the instinct of parental love. He is safe in infancy, and under the nurture which God provides, he expands into matured manhood.

§ 8. The canon above quoted asserts that men are born not only free, but equal. Equal to what? and in what? In physical, mental and moral nature? At birth he is equal in neither to any adult, nor to other infants in either of these. Infants are notoriously unequal in heredity and environment.

Inequality continues at the maturity of manhood. The sexes are diverse in gifts and functions. Races of men differ widely.¹ Men of the same race are unequal. In physique, we have giants and dwarfs � athletes and cripples � a Hercules and a hunchback: in mind, we have a Napoleon and a Louis � a Newton and an idiot: in morals, a Washington and an Arnold � a La Fayette and a Marat. In music, we find a genius for harmony, and another who cannot distinguish one air from another: and so in poetry, art, science, philosophy and statesmanship.

God, in derision of the human dogma, stamped the law of inequality upon all his works. There is likeness, but no sameness. Nullum simile est idem. Infinite wisdom is manifest in the infinite variety of creation. Organic and inorganic kingdoms have, in each, innumerable genera and species. Vegetable and animal organisms present a mass of beings in the innumerable steps of an ascending scale from the sponge to the highest type of man. It is in this plan of the all-wise God that we find spheres of utility adapted to the several capacities of every organic atom and

every organic life. Each has its function; to each is assigned its mission; and to all moral beings, their duty. Inequality in such a plan is essential, and is the fundamental law of the system. Equality would be out of place, because if established it would destroy the system.

Out of this infinitude of diverse creatures, diverse in structure, in functions and endowments, springs that law of human activity, denoted by the economist as "the division of labor," which is only practicable where there are laborers unequal in capacities, and which makes, under the laws of production and exchange, each creature participate in the productive qualities of every other, and, by combining the labor of all, contribute to the happiness and the common good of all mankind.¹

§ 9. In the Virginia Bill of Rights adopted June 12, 1776, drawn by George Mason, the dogma referred to is presented in a form less open to criticism. It declares² "that all men are by nature equally free and independent." This statement is made of "men;" and asserts their equality by nature in freedom and independence, without averring the extent of their freedom or independence, or of any equality except in freedom and independence. In this form, it is not very different from the doctrine we shall state hereafter.

In the Declaration of Independence the statement is, "that all men are created equal; that they are endowed by their Creator with certain inalienable rights," etc. This avers a creation by God of men in a relation of equality, but without averring in what the equality consists except as it may be implied in the endowment of each with inalienable rights, which are then designated to be: "life, liberty and the pursuit of happiness." Taking this whole statement, it will be found to be very much in accord with the views now to be presented.

§ 10. Pursuing our induction, the question arises: What freedom, if any, and what equality, if any, may properly be

asserted for men? Is all freedom and equality desired? Let our induction winnow the truth from the error.

§ 11. The germ of manhood enters by birth into the family (which is the germ of all society), in subjection to the father, the patria potestas (the germ of all government); and all this is by Divine ordination.

The whole economy of this entrance upon life is conclusive evidence of the truth, that the parental government was designated for the good of the child; for his nurture under the best conditions to his maturity. He is placed under a power, upon which the Divinely implanted instinct puts the most potent limitation, that it shall be exercised in justice and love for the highest interest of its subject. It is not autocratic, it is Divinely derived � it is not absolute, but vested in trust for the protection and development of the infant. The Divine injunction to the parent is to keep this child, and foster in him the gifts which God has bestowed upon him: the very fact that power and love are linked in this primal government of the family chief, proves that the Divine institution of Government in its germinal form was limited and confined by the paramount duty to the child, the performance of which was insured by the tender relation between parent and child. The power was entrusted to love, in order to secure the well-being of the child.

While therefore we find in the family the evidence of the fundamental truth, that "the powers that be are ordained of God,"¹ we find the qualification of this ordination, "for he is the minister of God to thee for good."² The first shows that power in government lies in grant, and is not autocratic; and the second, that it is invested, not for the benefit of the ruler, but for the good of the subject.

This is the constitution for the family government, written upon the living table of the parental heart.

§ 12. The subject of this family government is a helpless human being, a creature of God, gifted with faculties, which are his own exclusively, to which a duty is annexed in their

use, with responsibility therefor to the Giver of them � a responsibility personal and exclusive. He holds his endowments by exclusive title in trust for God. In order to perform this trust duty, his use and direction of his powers must be by his own will, because of this sole and exclusive responsibility. This is the dogma of self-consciousness, as well as of Divine authority; for with the gift of talents to each, the injunction follows: "Occupy till I come." The endowments are not equal, but diverse; but the duty of each, the trust imposed upon, and the responsibility exacted from, each, are equal and exclusive. The right of each to self-use, for the discharge of his trust and to meet his responsibility, must therefore be exclusive, because the trust and the responsibility are personal and independent. The gifts are unequal in amount, but the right of each to his several endowments is equal to that of every other being, because each holds his right under equal and exclusive trust and responsibility to his Creator.

Lord Bacon and his menial servant were wholly unequal in their respective endowments. But the right of each to his own life, limb and liberty was equal to that of the other. The objects of rights may be unequal, but the right of each to those several objects must be perfectly equal. The cottage of the poor is not equal to the mansion of the rich; but the title to the hovel home is as impregnable as to the princely palace.

§ 13. Herein we find the true equality between men. It is the sole, exclusive and personal right of each man to the endowments each receives from his Maker. Inter homines, each man's title to these is absolute; between himself and God, he holds as trustee for his Creator. Every man for himself in absolute self-use against all intrusive control by any other man. "Who art thou, that judgest another man's servant? to his own master he standeth or falleth."¹ How can any man interfere with the exclusive right of another to do his personal duty and meet his sole and exclusive responsi-

bility to the Divine Being? How can we lawfully control another in discharging his duty to God? In the attempt, he invades the sacred precincts of the Divine Government. No man can allow another to do so and be guiltless: for it would be treason to his trust, and destruction of his duty. He must resist this attempt, because only in freedom of action can he fulfill his Divinely appointed mission. His defense of this personal liberty, therefore, is a religious duty to God. It is not a mere right he may waive, but an imperative duty he must perform.

When this personal trust in self-use to the Divine Being is fully apprehended, it will embrace all human action, whether called secular or religious. All self-use will be regarded as religious duty. The liberty of self-use, or, in other words, the liberty of our life, will be seen to be a Divine gift to each man with which to do a Divinely imposed duty, under accountability to the Divine King. To surrender this gift of liberty, is religious treason; to defend it, religious duty.

§ 14. Liberty, which comprehensively means this exclusive right of each man to self-use � that is, the exclusive use of the Divine gifts to him, under trust and responsibility to God, does not come, therefore, through any social compact of men, or as a gift from society or from government. It is the gift of God! It is a liberty of self-use, inalienable by himself, because that would be breach of duty and surrender of the trust Divinely vested; and inalienable by any and all others, because a sacrilegious robbery of that with which he is Divinely invested.¹ Voluntary surrender is personal treason to this trust, and to deprive him of it, is to rob God's right in him. Either is destruction of the sacred trust he holds for his Maker.

§ 15. We have thus seen that, by Divine ordination, the family is the germinal society into which is ushered, by Providential methods, the infant germ of manhood, as a subject of the germinal Body-politic, the parental chief of the

family. We have further seen that this parental government, Divinely ordained, has limits on its powers, in that they must be exerted for the good of the subject; and that this subject, as a creature of God, is endowed with the liberty of life, that is, with the exclusive right of self-use as to these endowments, in discharge of his personal duty and under his exclusive responsibility to God.

It is an obvious consequence of these propositions, that the powers delegated by the Creator to this primal government, not absolutely but in trust, are limited to such exercise of these powers as shall secure to the subject the full self-use of his endowments, for the purpose for which God bestowed them � i. e., to work out his destiny in discharge of his duty in order to meet his religious responsibility to his Creator. The powers so ordained of God were given for the use and benefit of the child � to save life, not to destroy it � to promote his health and happiness � his growth and full development to matured manhood. Society was thus made for him � as a school for his training; and the family government was constituted to secure his liberty and to advance his well-being; and as there might be many children in the family, the rightful exercise of its governmental powers would be in limiting them to such restraints on its members as would best conserve the right of each to his personal liberty of self-use, free from the intrusion of others, so that each may conform his life to the purposes for which it was given to him by his Maker. And it is a clear corollary from these principles, that the power ordained to protect each of its subjects in their liberty from invasion by others, cannot be so exercised by itself as to destroy or abridge that liberty. The protector cannot assail those he was ordained to protect, and cannot destroy the liberty he was created to secure. The Divine constitution for the personal government of the family was one which ordained the delegation of limited power to the parent, to be exercised in trust for the good of the child. In it we find the model for free institutions in all ages and for all mankind.

§ 16. In § 4, ante, we defined Sovereignty to be "the rightful political power vested in the Body-politic." In what we have ascertained by our inductive method, we are prepared to see in the primal body-politic, the family, the meaning of these terms. For we have found that power in the family over the children is Divinely vested, and is not autocratic: � it is derived from God, and is not original. And we have further seen, it is only rightful when it is limited to the purpose of preserving the liberty of its members in the self-use of their respective faculties under their separate and exclusive responsible duty to God.

In this germ of society and of government, we find the organic social force restrained by Divine limitation to the exercise of only such powers as will conserve the personal liberty of its individual members, and promote their good. This is a cardinal canon of the Divine constitution of the family, the germinal society and the germinal government, ordained for men by their Creator.

Neither revelation nor reason conflicts with this canon; but both uphold it. Society and government were made for man: man was not made for them. Society was ordained as the school of our race; and government was ordained to preserve society. This Divine ordination of both for the use of man involves the negation of power in either to misuse or abuse his personal rights or his individual liberty. To do this would defeat the Divine purpose in the ordination of both. It would violate the right of God in man; and thus perpetuate a wrong, not only on man, but on his Creator.

Hence when the patria potestas, ordained of God for the family government, invested with authority limited by the right of man to his personal liberty of self-use (free from all external intrusion), with which the man is as distinctly invested by Divine ordination as the power itself transcends this limit and invades the domain of individual freedom, it usurps an authority never vested in it, and violates the rights, the protection of which was the only purpose for which it was created.

While therefore it is clear that the patria potestas is ordained of God, the ordained limits on its powers are as clear, growing out of the rights of its subjects, to conserve which is the trust purpose for which those powers were conferred. The fact of ordination of the powers that be must not be held to give Divine sanction to the claim of unlimited authority by those "powers," nor to save from condemnation the tyranny of despotic governments, which have destroyed the liberty of the individual man, which those "powers" were ordained to protect and secure.

The power of government is ordained of God, but so is the right of the man, and the "power" of the one is limited to the conservation of the other � in the primal constitution of society. This Revelation teaches, Reason sanctions and Consciousness confirms.

§ 17. It is equally illogical, and wholly contrary to reason, to infer that the patriarchal form of government which was evolved from that of the family, and all other systems of government which have grown from these, have any unlimited authority, or any power to destroy the individual liberty of their subjects. The limitations on the germinal form of government according to its original constitution, which have been indicated, follow governments in every form they may assume, and bind each and all of them to obedience to the fundamental canon already stated, to-wit: that no authority is rightful which does not conserve the personal liberty of the man and promote his individual good.

§ 18. These considerations suffice to show that, while the Body-politic is Divinely ordained to exercise power over men, yet the individual man is created by God with inalienable rights, for the security and conservation of which the Body-politic holds its powers in trust; and that these are vested not for the sole purpose of protecting the man in his self-use, but of securing to him the liberty of self-development, as well as the fruits of his self-use, embracing life, property and the pursuit of happiness.

Declaration of Independence is essentially true: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

The Body-politic is the means Divinely ordained to secure the inalienable rights of men, and is only legitimate when it promotes and is not destructive of these ends. This fixes the true relation between man and the Body-politic. It was made for his good; he was not made for its benefit. Magistrates are the trustees and servants of the people; and men can never be jurally deprived of their essential liberties by the power of government.¹ Political power and man-right stand related as trustee and beneficiary � not as master and subject. God delegated the power to govern, but he vested the right in the man. The right is primal and essential; the power is secondary and auxiliary. The right is the end; the power the means to secure it.

§ 19. It will be noted that, with some exceptions, writers on political science concede the existence of man as a creature of God. Rousseau speaks of the "binding obligations he lies under to himself."² We must regard the "binding obligations he lies under to" his God. This makes his self-preservation not only a self-obligation, but a religious duty. As a being endowed with distinct faculties and will, which are the essential of his personality, he must be sole determiner

¹ Va. Bill of Rights, Arts. 1, 2, 3; Preamble to Const. of Mass., 1780, Arts. V, VII. See like declarations

in other state charters and Constitution of United States. ² Social Compact, Bk. I, ch. 5.

of his destiny. He cannot yield this power, charged with the supreme duty, without peril to himself and treason to God. It follows inevitably, that he cannot permit the Divinely constituted guardian of this essential liberty to destroy it. As the ward of the Divine Being he must use every means to prevent government from turning its power, entrusted for his shield, into a sword for his ruin.

§ 20. In this view, the Body-politic is man's trustee � not his master. Man is a cestui que trust, not a slave. His right is God-given. Its power is Divinely intrusted for the conservation of his right. All the theories of Hobbes and his utilitarian followers, which place his title to liberty in the will of the Body-politic, or by the grace of government (Hobbes' Leviathan), or of Rousseau and others, which deduce them from a real or hypothetical contract made for him by a dead ancestry or by himself, or implied from his acquiescence, are alike false and fatal to his interests. Deriving his title from God, his claim is higher than the power of all governments. His right precedes its power; and power is God-given to guard God-given right. Man is placed by God in wardship to the Body-politic as his guardian � and the guardian's power is legitimate only when it protects, and is ultra vires when it impairs the right of the man.

a trust imposed on him by the Creator. When realized as such, not as a mere possession to use or not use, at the option of the holder, but to be used under the sanction of duty to the Divine Giver, it becomes an impulse to real life, that is, to self-development, to the highest possible degree. Self-direction under dictates of self-conscience is thus an imperative duty � and the enlightened human soul will be scrupulously intent on the exclusion of all external interference with performance of this truly religious duty; for all life, in this view, is strictly religious, � that is, under responsible obligation to God. And in this consideration will be seen the powerful influence of Christianity upon free institutions.

Before the Christian era, all polity was concentrated upon the construction of the State � without special regard to the right of man. The utility of the ancient systems was in the glory of the commonwealth, which conferred its gifts of right and liberty on the man � whose satisfaction with the order must be found in his membership of the state, honorable and eminent in the family of nations. Its great purpose was the development of the po/lij, not the security of the man � and his rights were subordinated to the power and glory of the state or the empire. Man was only a fraction of the mass.¹

Christianity, in its segregation of the man from the mass; in its personal demand upon his conscience; in its isolation of his responsibility; in its holding out immortal rewards for his individual conduct; and all this under a sense of obligation to the Supreme Being, � implant in the man such a profound consciousness of his accountability for his destiny as to make it a moral force, which dreads treason to the Almighty King more than all the threats of human power �

It was this new inspiration of the human soul which has made modern civilization. It put into the man a sense of individual responsibility, which impelled him to a brave self-assertion of his right to liberty, as essential to his duty to God in working out his sublime destiny. This influence must be conceded by all, whether the Divinity of the system be accepted or rejected, as the great moral, social and political motive in modern progress.

This influence it is which has impelled man to challenge all power over his conscience and will; and to resist the abuse as well as the usurpation of ecclesiastical or political authority over his mind or body. It has demanded freedom of thought, of speech and of action. It has overthrown kingdoms, dethroned monarchs, changed dynasties, and rent asunder empires. These are the results of the doctrine of Christ � that it is not right for man to render to C�sar

This view explains the close connection between religious and civil freedom; and how the revolutions which have saved Anglo-Saxon liberty have united the civil rights of men with the freedom of the human conscience. This alliance made the English commoner cling to his civil rights with an enthusiasm which tyranny over a quickened conscience alone could arouse. Civil liberty under the inspiration of religious duty shattered the Eikon Basilike,¹ and upon the ruins of jus divinum regun, erected the edifice of constitutional government. And the historian who sees in the struggles of our race, which have evolved the free institutions of England and America, nothing but the efforts of man to assert the cold abstractions and canons of a violated social compact, has omitted to see and estimate the power of a religious enthusiasm, which feels the inspiration of loyalty for a Divine King in every blow struck for the security of personal freedom against human despotism.

§ 22. The germ of royal responsibility to law under the Hebrew Commonwealth is found in the words: "He (the king) shall write him a copy of this law in a book ... and it shall be with him, and he shall read therein all the days of his life; that he may learn to fear the Lord his God, to keep all the words of this law and these statutes, to do them: that his heart be not lifted up above his brethren, and that he turn not aside from the commandment to the right hand or to the left: to the end that he may prolong his days in his kingdom, he, and his children, in the midst of Israel."²

In this prophetic constitution for the kingly power, we see no warrant for its perpetuity or for irresponsible autocracy deduced by the Filmer school � but we find the

¹ This means "Royal Image," and was the title of a book issued after the execution of Charles I., and reported to have been written by

germs of modern freedom in the three-fold canon � that the king should be bound to the observance of the written law as the charter of his power and of the rights of the people; that he should not be lifted above his brethren, nor turned to the right or left from the commandment made for him as well as for them; and that the tenure of his king-ship was conditioned upon his observance of the written law of the kingdom. The Divine ordainment of government, and even of the prospective monarch (so he be not an alien, but a brother), is shown; but absolute irresponsibility and disregard of the rights of the people are not only not sanctioned, but are plainly condemned.

In the New Testament, Christ himself draws a clear distinction between rights which are subject to the civil power and those which are not.¹ In the apostolic answer to the Sanhedrim, the assertion of religious rights which the civil authorities cannot touch, is distinct and emphatic.² Paul enjoins obedience to the powers that be, as the "minister of God to thee for good," thus making government a minister who holds power in trust for the people.³ The trust purpose of political power, and the duty of human obedience, are set forth as interdependent, making the observance of both of equal obligation.⁴ And the same principle is enjoined by Peter the Apostle.⁵

The exodus of the enslaved Hebrews from the Egyptian rule under the prescriptive title of centuries; the selection of the first kings by the voice of the people; the secession of the ten tribes because of the oppression of Solomon's son, � were under Divine sanction.⁶ These facts in Jewish history reprobate the jus divinum regum, and enforce the doctrine of kingly responsibility for the duty of protecting the rights of the people. The error of the Filmer school is not in deducing from sacred history the Divine ordination of govern-

¹ Luke, ch. 20, v. 21-25; Matt, ch. 22, v. 16-21. ² Acts, ch. 4, v. 19. ³ Romans, ch. 13, v. 2-4

ment, but in maintaining that it was ordained with absolute, and not with limited, power � without duty, and not under trust � regardless of man-right, instead of for its protection � irresponsible and a permanent tenure, rather than conditioned upon the due observance of the law, as the constitution of the monarch. He deduces all kingly power as a transfer from the patriarchal or family government, and claims that royal authority is by Divine right, because the patria potestas was constituted by God. But his error is fundamental, when, even with the concession that the king is the successor to the father's power, he fails to see that, in the Divine constitution of the family, the parental power is not autocratic, but delegated � and not absolute, but in trust for the good of the subject.

Milton, Sidney, Locke, and all the religious civilians of the seventeenth century substantially concede the premises of the Filmer school, with the qualifications above mentioned, and thus deny utterly its absurd conclusions; not only in their writings, but in the Revolution which during the throes of half a century condemned to death one hereditary king, deposed another, and elected an alien to the throne, under a monarchy constituted on written charter, in the memorable year 1080.

§ 23. The compact theory of Locke, Rousseau, and others also fails to meet the conditions of this great problem. For as already shown, it has no historic truth, and could never have been the basis of political society. And if the non-alienability of a Divinely vested personal right has been successfully established, from the trust duty coupled with the gift, no compact could bind the parties to it which proposed to give away what was inalienable; and much less could it bind those not parties to it, and born after it was entered into. And a fortiori, the dogma of Hobbes and his followers, or of the utilitarians, is inadmissible, which makes alienation of rights to government irrevocable and forever binding, not only on the contracting generation, but upon the unconsenting posterity forever.

§ 24. The true philosophy of this vexed question then must be sought in the historic facts, which an induction has found: Society grew from the primal pair, the dual-unit of humanity; the children with them made the family, the germ of all Bodies-politic; the patria potestas, the germ of all governments, is supreme, not absolute; delegated, not autocratic; and with authority to govern, as guardian of the rights of its subjects. The family grew to a patriarchy � a union of many of these from kindred or other ties, made the nations which have filled the Earth. The Divine ordainment of the primal government therefore proves that the latter was made for man, not man for government; and that Society and Government were the Divinely constituted means for the good of men � and that no political power is legitimate which violates and does not conserve Man-Right: that as the epi/tropoj (the guardian) of Plato, it must protect and uphold the rights of men, and not assail and destroy them. From all which it follows, that when the guardian fails in duty, or wickedly destroys right, its ward may take measures to remove the faithless governor, and substitute one who will better subserve the ends and purposes of the Divine constitution. Power is not, Right is, immortal. Political power must cease when it fails to subserve the rights of man. The Patriarcha of Filmer (writing in the interest of the House of Stuart) maintained jus divinum regum. The American constitutional school bases Political Science on jus divinum hominum!

§ 25. In this statement it will be seen there is involved, as a limit on power, that it shall conserve the rights of man. It becomes proper then to define these rights of man more precisely than has been done.

If we regard the new-born member of society, with his undeveloped germs of future life, powerless, helpless and hopeless but for parental love, what are his rights which God thus intrusted to parental power?

His right to life, and to its preservation in healthful growth, is God-given. The parental power is given not for the parent's good, but linked to a duty to the child; a power which

has no title to be, if divorced from that duty. Infanticide is the exertion of parental power; but is criminal usurpation, because a violation of duty. No parental power is legitimate which trenches on the right of the child. The power is a parasite of the duty; severed from it, the power dies.

The discretion in its exercise is unlimited, except by its object. All that is bona fide exercised for that object, in the way of restraint and direction, though under false judgment, can only be corrected by him whose right is imperiled. As he grows in capacity in self-development, the parental power decreases with his expansion; and, when maturity is reached, the right to self-use is complete, and parental power, gradually decreasing hitherto, now ceases. The duty of the child to God in the matter of his life is to submit himself to the wisdom of the parent, until he reaches the point at which self-direction is safe. When that point is reached, submission to others against his own conscientious judgment is error � it may be worse. And as it was the duty of the child in his incompetency to yield to parental direction, so now, in his matured competency, it is the duty of the parent to yield his former power of control to the hands of the adult child � for as the power only sprang from a duty due to his incapacity, it must cease when the incapacity ends. If the incapacity continues in case of idiocy or insanity of the child, the parental power and the duty, of course, continues, and the man's wardship is perpetuated, for such person has not the right of self-direction; for right to do is not predicable of one who has no capacity to do.

§ 26. What are the related rights of adults in social life? and what the relation of social power to personal freedom?

The right of every man is liberty of self-use, which involves that of self-direction. This arises from his distinct individuality of being as a creature from God. If man were alone (ex hypothesi) this liberty would find no limits, except in his capacity to control external things. Within the bounds of that capacity, his will would be unconfined. This is what might be termed the liberty of isolation. But as has been

shown, this solitude is exceptional, even if it ever had reality, and perhaps never existed, save in the imagination which delineated Robinson Crusoe. Let us look at its advantages and disadvantages.

The primal motive of human life is self-love � and its object, happiness; which is the status wherein the man is in harmony with self and with the external world. A man at peace with self and with external things is happy � at war with either or both, he must be the reverse.

His physique has wants � which the external world can supply. He needs food, raiment, shelter. When he supplies these in rude forms, his nature aspires for better. His appetite craves delicacies, his body demands improved raiment, and he changes the rough skins of animals for apparel which will combine beauty with utility. He is not content with a hovel, and must have a home of comfort and even elegance. This passion for external things, to minister to his comfort, taste and luxury, begets a propensity to acquire by art and skill these objects in improved forms for his growing desires and improved needs.

His moral powers suggest his needs � his mind devises schemes of supply � and his physique, under the direction of these, finds and moulds natural objects to meet his varied and defined wants: for these objects must be sought, subjected and moulded by his physique under his intelligent direction for his purpose. The animal and vegetable � the organic and inorganic � kingdoms offer innumerable objects not attainable for use, nor useful when obtained, except by the aid of his mental, moral and physical forces. These under command of his will are made efficient to lay Nature under tribute to his desires � when his moral force declares its purpose � when his brain lends intelligent aid to discovering the latent or unknown possibilities of nature � and when his physique fashions her unbounded resources to man's use � the raw material so transformed into new objects for the use and for the satisfaction of human wants, become objects into which he transfused himself, in which Nature is combined

with himself, and the resulting product in a large degree is part of himself � because his being is so confused with the raw material as to be unseverable and indistinguishable in the new product. Hence, such things are propriae � parts of the man himself � and are called in all ages property.

If man were isolate, natural law dictates that Nature in her possession of unadapted materials is open and free to his sole enterprise. Robinson Crusoe in his island home would have none his "rights to dispute, as lord of the fowl and brute." But if another man were on the island, it is obvious that all the rights to external nature exclusive in the isolate Crusoe would be equally open to the enterprise of the new competitor for the supply of his need. "Thus his exclusive rights, the result of isolation, would be modified and abridged by the presence of those whose rights would be as unlimited as his own. The rights of each would thus be qualified in such a way as to deny the exclusiveness of any, and to admit the participation of all; and it would become the duty of each to admit right of all others, and so to qualify his own."¹

It is obvious that the liberty of isolation is very different from the liberty of social life. He surrenders his isolate right and liberty by being in society, but he does not surrender his social right or liberty by being in society. The idea so often stated, that a man by entering into society surrenders some of his liberty to secure the residue, is therefore inaccurate, and suggests a fallacy. His social liberty is essentially different from his isolate liberty, but he is in society to secure all of his social liberty � that is, all of liberty which belongs to him de jure, as a social being. His social liberty includes all rights which belong to him as a member of society. These, though different from his isolate liberty, are all which he can have in social life � and to all of these he has full title in society, and surrenders none by being in society.

being in social life will depend on the "claims and necessities of his associates. If each cannot have all the rights he might have as a solitary being, he must have all which are consistent with the existence of the highest practical rights in others. If there be conflict, it must be reconciled by such a compromise as will attain the best development, the highest happiness and well-being of all. Neither part must seek for itself a greater elevation by the deeper depression of the other; but each must so adjust itself to a social equilibrium, that the maximum elevation of each shall be attained, and the minimum depression of each be avoided. Thus where two conflicting interests are combined in a society, civil liberty will consist in the preservation of that equilibrium, where the social rights of each so modify those of the other as to preserve to each the greatest amount of right and freedom consistent with their co-existence in social combination. In this there may be what appears to be an abridgment of liberty; but it is the abridgment of the liberty of isolation. It is not an abridgment of social or civil liberty, which is the highest liberty which either interest can enjoy consistently with their coherence in society."¹ These views are in accord with Herbert Spencer: "Every man may claim the fullest liberty to exercise his faculties compatible with the exercise of like liberty by every other man.... Every man has freedom to do all that he wills, provided that he infringes not the equal freedom of any other man."²

It follows further, that the maxim that the great object of government is to secure "the greatest good to the greatest number" is a perversion of all the true objects of social life. If this means that the greatest good to the greatest number may be secured by the sacrifice of the happiness of the lesser number, it is execrable; for in the social organism there must be no lottery of prizes to some and blanks to others. The greatest possible good to each and all is the true canon; for that secures perfectly all the social liberty of

every man � that is, the maximum of good to each consistent with like maximum to every other. This is the equilibrium above spoken of, and is sanctioned by Spencer.¹

§ 27. And it is here proper to say, that, while isolate liberty is unlimited in quantity, yet social liberty is so much better in quality that the latter is not only greatly to be preferred, but it is the highest and best and indeed the only possible liberty for man. So that it is well the liberty of isolation is only ideal, and that social liberty involves practically all that is most to be desired by man.

1. His inborn instincts make isolate life a curse, and social life a blessing. These instincts are affinity between the sexes, parental and filial ties, and yearning for sympathy, which can only be met by association with others.

2. His mind seeks fellowship with mind. Language, which his mind suggests and his vocal powers accomplish; music, never so charming as in harmony with others; thought, never so rich and pleasurable as in commerce; and worship, never so grand as in communion; all these are incitements and witnesses to the truth that "to dwell in the midst of social alarms" is better than "to reign in the horrors of solitude." Moral support in sickness, trial and death; the outgoings of the heart towards objects of affection; the need for cooperative effort with fellows better to obtain even physical comfort, and, more important still, to achieve the purposes of the soul's aspirations for higher life; all these would make man, if ever isolate, fly from the best solitude to any society; or when in society, shun isolation as a dreadful doom, and cling to any social life as the only status for the race.

These statements will suffice to show that the liberty of social life is incomparably superior in its quality to all that the liberty of isolation can offer. Its very limitations being the blessings of security, and mental and moral self-development to the noblest destiny to which the individual can

aspire, and which are impossible as results of isolated freedom. And thus social liberty is the highest possession of humanity � because with it man reaches the purposes of his best aspirations � while isolate freedom dwarfs the soul, and shrivels its every aspiration into brutish insensibility.

§ 28. Let us now look to the abridgments by social conditions of isolate liberty, which differentiate it from social liberty. The rights comprehended in liberty are in persona and in re � personal and property rights. In considering these, we come to a fundamental distinction between Jus and Lex.

Jus corresponds to the Greek di/kh (righteousness) and qe/mij (Goddess of Justice), and the Latin rectus (straight), our English right, from rego � same root as rex � meaning the will of the Eternal Rex. Jus therefore means the abstract right � the will of God � precedent to and independent of all human institutions and human law. Lex, on the contrary (lego), corresponding to Greek no/moj (enactment), and qesmo/j (radical � to place upon), is the enacted law of men.

Jus is the law of God � Lex, the law of man. St. Thomas Aquinas says: "jus non est lex, sed potius id quod lege praescribitur, seu mensuratur." Jus is the abstract justice of which lex is the human expression and measure.¹ And this distinction seems to be recognized in Justinian's Institutes.²Hobbes also asserts it with force.³

When therefore the terms jural and legal are applied to liberty or right, the distinction is clear. Jural liberty or right is what God gives; Legal, is what society or its government allows. The one being God-given is what the other ought to allow. The one is de jure, the other de facto. They should be synonymous � but have not been in human history.

¹ Cicero says: "Nec enim alia lex Romae, alia Athenis, alia nunc, alia post hac: sed et omnes gentes et omni tempore, una lex et sempiterna et immutabilis continebit."

³ De. Corp. Pol., Bk. 2, ch. 10, § 5. See also Burlamaqui, Bk. I, ch. 752; Puffendorf, Bk. I, ch. 6, § 3.

§ 29. What jural rights in persona belong to man within the term "social liberty?"

This depends on his relations to others. These arise from particular ties, which include marital and parental and filial rights and duties, or they arise from general ties embracing the obligations of all contracts express or implied � the duties inter se of parties in sales, partnership, agency, bailment, trusts assumed voluntarily or imposed by law, and also all conflicting personal rights by misuse of one's own liberty to the injury of others.

The definition of limits between competing rights is a question for natural law and not for the subject in hand; but it may be said that Nature and Revelation supply two rules �

the Golden Rule of Christ, and the civil-law maxim: Sin utere tuo, ut non alienum laedas. Justinian also says: "Juris praeceptae sunt haec � honeste vivere � alterum non laedere; suum cuique tribuere."¹ In all the relations of persons, their jural rights may be decided by these rules, and the legal enactments of society should conform to these.

§ 30. What jural rights in re belong to man within the terms of his social liberty?

The origin of property has been the subject of much acute and learned discussion � with which this work has nothing directly to do � but the jural principles which underlie it may be stated, for their important bearing on political science. Property in self has been spoken of as involving the title to self-use. A man belongs to himself � subject only to God's right in him. All that is of objective value, which is the exclusive product of his self-use, belongs to the man.

Instance his thought � his idea. It is his own exclusively � for how can another get it but at his will?² Disconnected with matter, idea is an entity of value � of money value �

and man has such a jural right attaching to it, that legal title to it is recognized in copyright and patent laws � so that no

if my heart were in your hand; nor shall not, whilst 'tis in my custody. Othello, act III, scene 3

one can combine another's thought with his material property, unless he pays for the intangible and invisible idea.¹If A can claim title to his idea, which in contact with the insensate matter makes it a thing of life and power, how can B claim title to the resulting product, into which A has breathed his vitalizing thought, unless B has some better right than A to the original material?

This jural right of each man to his own thought is so recognized in the Roman and Common-law jurisprudence, that B's property, if wholly transformed into a new thing of utility by the genius and art of A, becomes A's rather than B's property, with allowance of claim by B against A for the value of the original material; unless the taking of the latter by A was a wilful trespass.²

This evidence � communis consensus � as to the jural right in such cases, would show that if A bestows labor of brain or physique upon res nullius or res communis, he must be held jurally to own the product by reason of the commingling or confusion of his labor with the original material;³and this idea of property is vindicable upon another ground hereafter stated.

But the question still remains � what is the basis of property to things in their natural condition � movables and immovables?

Let us consider that "dominion" which God gave to man "over all the earth,"⁴ to which Blackstone refers in his Commentaries,⁵ and adds, "the earth, therefore, and all things therein, are the general property of mankind, exclusive of other beings, from the immediate gift of the Creator."

Perhaps the best view of the relation of mankind to the earth is this: The Creator placed man upon the earth covered with organic and inorganic material to be fitted for his

¹ Spencer's Social Statics, ch. II. ²Schouler, Personal Prop., ch. 2; 1 Domat, Civil Law, § 2160. ³ Ante, § 26. See also Rousseau's

comfort by his labor, and with endowments to assume and hold dominion over them. As this is the fact, it is rational to presume it was the ordainment of God.

Property in all this was not vested in man, but was offered to his acceptance for tillage, and the use of its animals for food and clothing. Like all the gifts of creation, they must become ours, only on condition of their subjection to our use by our labor of brain or muscle. All Divine bounty is only consummate upon acceptance through labor in some form; even light and air may be accepted or rejected. Natural fruits and water must be found and gathered for use. Trees must be felled for fuel and shelter; animals fer� natur� must be hunted and killed for food and raiment. Land must be cleared for tillage; timber and stone procured and felled for houses; springs sought and wells dug for water.¹ In all of these cases, which look to individual holding of external things as one's own, or as property, personal labor is so mixed with the original object as to make a new product, combination of the raw material and man's work.

Thus, the truth seems to be this: God gives to him who will take for use through labor � not to the sluggard. "In the sweat of thy face shalt thou eat bread."² And with respect to the best of Divine gifts, it is said: "Whosoever will, let him take the water of life freely."³ He may take what he needs for his personal use and make it his own, leaving what he does not need for the supply of others in equal right with himself.

Cicero illustrates this well by right to the seats in a theater, where the first occupant of one, when seats are free to all who will come, has best title thereto. Qui prior est tempore potior est jure. He says: "Sed quemadmodum theatrum, cum commune sit, recte tamen did potest, ejus esse eum locum quem quisque occupari: sic, etc."⁴

¹ See this illustrated in the Patriarchal era. Genesis, ch. 21, v. 30; ch. 26, v. 15-18.

Let us test this by a case where A and B compete for title to a thing adapted to human use, e. g. a house, an arable field, a well, clothing, food, or the like. A has taken a natural object, and by his individual labor has transformed it into a thing for use and comfort. B claims that the gift of Nature to mankind entitles him to partake of the benefit of the new thing because of his equal right with A to the original object. He says his right was equal to A's for the original thing, and why not to it in its transformed state?

In answer to this claim, A may say that the offer was made to all alike, he accepted and B did not; that his acceptance still left to B and others a fair share of what Nature abundantly supplied for all; that if B had equal right with A to the natural object, but no superior right to him, yet as A has supreme right to himself and B has no right at all in A, the product of the combination of A's self with the natural object gives A a better right than B can claim to the product; that, even where no labor was put by A in the natural object, yet, as the rights were equal, if enough be left for B and others, there is every reason why possession should give title to A � and even if there be not enough for all, B's claim against A's possession would only be for his share on a partition between all, which would be infinitesimal; and finally, if length of time has created moral claims from association to the thing possessed by A, and further the tie of affection, there is just ground to add to the possession the inference of a presumed acquiescence in it by all, which is the title by prescription � for as the civilians put it, the owner is presumed to possess, and e converso, the possessor, after long time, may well be presumed to own.¹

In what has been said, the right of one to take is only equal to that of every other; and hence, one may not take so much as will exclude others from a fair share in the things provided by the Creator for the use of all mankind. Rousseau said that while one may occupy vacant land, yet

"no greater quantity should be occupied than is necessary for the subsistence of the occupiers."¹ This indicates a truth which, however, cannot be so strictly confined. It is a protest against monopoly, but must not limit acquisition merely to subsistence.

In this view will be found the vindication of the doctrine of Johnson v. McIntosh,² where the unlimited claim of the nomadic Indian was confined within limits which would allow God's gift of a virgin continent to be used for the life of hundreds of millions of civilized men, rather than give a monopoly of it to a few hundred thousand savages. The jural right of every man and of every race must be limited as all social liberty has been shown to be, by the co-equal rights of other men and races brought into association with them.³ The reader will note the analogy between these jural principles and the pre-emption laws of the United States, which prevent monopolizing grants to any one, and give preferable rights of purchase to him who has expended his labor in making a home on any part of the public domain.

It is proper to notice the views of Mr. Herbert Spencer in respect to the right to property in land, distinguishing this from all other property. As to all property rights, except land, he is not in antagonism to the general view already presented; but as to land he maintains that land belongs to mankind, and therefore to society and not to the individual. He suggests that the State should lease at some fair bidding free to all; the lessee paying rent will own the residual product of the land as his own (for he has mixed himself with it). This being his property he can buy other things. Why not buy land of the State? If so, land-holding with its supposed evils begins again. If leasing but not sale be allowed to society, as the feudal land-owner, then the evils of paternalism (which none condemns more than Spencer) will be the doom of social life. The remedy this able writer pro-

poses, besides the obvious difficulty of carrying it into practice, would be worse than the disease.¹

Besides, as above suggested, why should not the right of the lessee to the fruits of the soil be legitimately allowed to pay society for the permanent as well as for the temporary use? Why not permit him with his own money to buy from society the freehold as well as the leasehold? or the leasehold for a thousand years as well as for ten? If all this were allowed, we should have what we have had in all ages: an original ownership of all land by the State, distributed by sale or voluntary grants to individuals. If we reverted to this original condition according to Spencer's principle, history would only repeat itself, in bringing us to our present status after a few generations. What the public will should be careful to control is the tendency of men, greedy for power or wealth, to take hold of the political machinery and to regulate it in such wise as to grant a monopoly of land-holding, or any other property holding, to the fortunate few, at the expense of the unfortunate many.

The principles thus far established explain the way in which property rights have arisen in all the ages. Nature is f era natura; it is only when touched by the wand of man's genius that it acquires value for human use and becomes his own (propria).

Discovery, which is so potential an element in the title to external things, is the result of man's enterprise, sometimes of daring energy directed by a master mind. In the competition of children in search of shells, the first finder has conceded to him the preference of right. "I found it first," is recognized as giving a priority of claim. But in such cases, if the finder does not appropriate the thing found, it is left for appropriation by a succeeding finder. The trover must be followed by occupancy in order to title � for occupancy for permanent holding is, as Mr. Maine says, "the advised assumption of physical possession."² Lord Stowell makes

discovery give jus in rem, an inchoate title � but occupancy following, gives jus in re, the consummate title.¹ In these cases, the moral, mental and physical functions of the man or nation combine in purpose, thought and bodily labor to make res nullius or res com/munis the res propria of him who discovers and occupies. Thus the bold enterprise of Columbus, followed by occupancy, gave the title of a continent to Spain, at the foot of whose throne it was laid by the genius of the discoverer.

We have by the inductive method reached these primal truths of human philosophy, which revelation sanctions � a rational induction, independent of the teachings of revelation, yet in entire accord with them � that the Divine title to self is the foundation of the Divine right of man to property in external things. This independent process of reaching these primal truths is the tribute which human reason pays to Divine revelation. And all the writers to whom reference is made have quoted and relied on the evidence derived from the Scriptures as a basis for their reasoning and as authority for their conclusions.

§ 31. Bearing these conclusions in mind, it will be instructive to deduce some important corollaries from this simple analysis of the power of the Body-politic and the liberty of the man � as the former is the ordained means and agency for the conservation of the latter, which is the direct gift of a beneficent Creator.

First. The absolute and unwarranted tyranny of all laws which invade the freedom of individual conscience in the worship of God. For how could government be presumed to have been vested with Divine power to intrude upon the personal liberty of the man in paying his personal homage to God, under a sole personal responsibility to Him?

Second. As man in his personal independence of being has exclusive title to his own faculties, of brain, will and physique, with a title to exclusive self-use, it follows that the products of self-use of these, being the things into which he has

transformed or converted natural objects for human use, are as much his own as were the faculties by means of which they were produced. They are, in truth, a part of himself, because he has commingled a part of his real self with the natural objects from which they are made; and as this commixture cannot be resolved into its original elements, these transformed objects are recognized as his own, and are what we call property (proprius � a part of self). Labor (which is self-use) added to raw material makes the mass of objects of property among mankind;¹ and the right of property, therefore, is an essential branch of the rights of personal liberty � a right for which, as we shall hereafter see, men have made their greatest struggles for free institutions.

Third. If B takes A's property by force for his own use, it is equivalent to a claim of mastery by B and of a condition of servitude for A. And when government by form of law takes the property of A and gives it to B, whether by direct confiscation or by indirect means, it is a violation of duty and a usurpation of power. "It is none the less robbery, because it is done under the forms of law, and is called taxation."²

Fourth. Laws of monopoly, whereby special privileges are conferred on the few at the expense of the many � or for agrarianism, which divides the accretions of thrift and economy with the idle and wasteful � or for communism, which shares the fruits of toil with the worthless drone � all such destroy the equality of right which each man has in the exclusive use of himself, and subjects him and his property to spoliation and plunder.

Fifth. The oft-made assertion, that inequality of wealth among men is contrary to natural right, is wholly untrue. We have seen that men differ in their endowments and hence in their capacity and desire for the acquisition of property. Their acquisitions, therefore, must and do differ

largely. The "economy of industrious poverty," in contrast with the unthrift of the idle and of the prodigal laborer, makes a contrast of comfort and well-being even among the members of the poorer classes.

So far, therefore, from an inequality of condition being contrary to equality of right, it would be the greatest violation of equality of right to enforce an equality of condition.

§ 32. Having thus deduced the personal and property rights of man � these jural rights � from man's exclusive liberty of self-use to the fruits of self-use, it is necessary now to say that these jural rights are not always realized in the legal rights; that is, in the rights allowed to the man by the social polity under which he lives. But while this is so, we must not forget that the jural are none the less real because the social polity does not make them legal rights. The jus cannot be abrogated, but ought to find full expression by the lex.

§ 33. These jural rights of man, constituting in their aggregate what we call his liberty, have, as we have seen, been given to him by his Creator to be used under responsibility to Him. Can he rightfully surrender them? Is he not religiously bound to defend them?

We have further seen that society is ordained by God to conserve the rights of man and not to injure them. These rights embrace life (limb, health and self-use as part of life) and property as the results of life work and enterprise. To conserve these society is ordained.

As man holds all these rights in trust from God, he breaks trust by their surrender, or by not defending them. Hence self-preservation, embracing self-defense and self-development to the highest degree possible, is a religious duty. Man not only may, but must, defend himself. Self-defense is not merely a right, it is a duty � a religious duty. If he held his rights absolutely, he would have a mere right to defend them and might waive them; but as he holds them in trust for God, he is bound by religious obligation to defend them,

In self-defense, therefore, man defends not his own, but God's right in him. And thus it comes to pass, under every well-ordered human polity, that this self-defense has the best sanction, in that the man is to be regarded as the jural instrument for the lex, in what he does to the detriment of, and then in defending, his right.

As Society is ordained to conserve these rights, it follows that it cannot violate them � jural power cannot infringe jural rights. Governments have trampled on them � without jural power to justify them � and man-right has been destroyed by the power which God ordained to conserve it.

In this sociological discussion of the relation of man to society, and to the government, which is the organic social force, we are brought to the threshold of Political Science �

and are confronted with the inquiries: How can de facto power be made to conform to the jural standard and made to respect jural right? What redress � what protection � has right against un-jural power? Must the man abandon his right because power denies it? Is power irresponsible to right for its wrong? And how is the organic social force to be so constructed as in its administration to protect, and not destroy, man-right? Must the jural rights of man perish under the usurped dominion of de facto and un-jural government?

§ 34. If society and government were ordained for man's use, and to protect him in his liberty of self-development, it is now proper to look to the results of this Divine ordainment in the annals of mankind.

§ 35. The most cheerless chapter in human history is the account of how political power has failed in its trust duty to protect man-right, and has consistently perverted its authority so as to abridge and even destroy human liberty; and how stupid the man has been to perceive, how stolid to appreciate, his Divinely conferred privilege, and how tamely he has submitted to the despotism of the ages.

be explained as a sad, but instructive, preface to the history of the rise of free institutions.

§ 36. The primitive society was the family � the personal government � the patria potestas. It has been shown that the instinct of parental love was designed as an incentive to good and just government of the offspring. During childhood this would naturally operate upon power so as to conserve right. But when the parental power became patriarchal over matured sons and daughters, and their children, the tenderness of the father to his young children would be substituted by the more stern and rigorous display of authority over them, when, with diverse purposes and other homes, they sought to break away from the traditional control of the patriarch.

But why should matured manhood yield obedience to the parental power which had controlled childhood? If we consider what creatures of habit we are; how the actual is regarded as right, because it is and has always been so; how our environment is accepted as normal, because natural; how filial reverence and affection silence the cavils at parental power, and induce submission, even when restive under restraint; how gratitude for nurture during infancy begets obligation to repay to age the obedience and deference it exacts, � we shall no longer wonder at the enormous influence of patriarchal power in archaic society, or that the desire for liberty yielded to the customs of the household, "which put on the character of law." The impulse to be free from home-rule was checked by love for parents, brethren and the old homestead; and if other neighboring patriarchs were inimical, by the value of the family band of which he was a part, to resist his foes and to uphold his interests. These motives would turn him from his purposes to fly from home, and would tend to perpetuate the family society and the patria potestas as of great advantage to him.

Even in modern;society, how many cases occur in which grown sons remain at the old home under parental power; and are only released from this filial submission to the chief

of the family when death removes him. If this occurs in this era, how easy to conceive it in primitive society! The Homeric picture in the Odyssey, and that drawn by the writer of Genesis (both cited by Sir Henry Maine¹ as sketched from life) show that archaic society "was not a collection of individuals," but "an aggregation of families."

§ 37. In this primitive condition of society, we thus see how a compact union between the descendants of a Patriarch would result, in which the ultimate authority would be conceded even by strong and able sons to the long recognized and venerable will of the Father-Chief. The energy and sagacity of Judah, and even the wisdom and civil power of Joseph, bow in filial deference to the determinant will of the aged and feeble Patriarch Jacob.²

This is in accordance with natural principles; history teaches it, and our own reason and experience confirm it. Such a status was constituted without pre-consent, and was established by nature, with the acquiescence of the members of the family or patriarchy. No better substitute could be found for it, which all would acquiesce in � and the status continued. The father had the start in power over his child's liberty, and kept it with the child's acquiescence. The son might chafe under the parental yoke; but without the concurrence of all he could not overthrow it and establish any other rule. "To yield to superior power is an act of necessity, not of the will," says Rousseau; "an act of prudence, not of duty."³ The man thus submits, or as an alternative flees from his home; this is the equivalent of expatriation. His environment is as inevitable as the air which encompasses him. If he flees from it, the solitude of Cain is his doom � a doom as abhorrent to man as vacuum to nature. He can endure the life of his native home despite parental tyranny, but the solitude he would find in leaving it is worse than death. Man will bear despotism rather than isolation. He must, ex necessitate, submit to a rule against which he can only protest.

§ 38. If it be asked whether this patriarchal power be absolute or in trust, jural as well as actual, and whether parental authority can be de jure converted into tyranny, the answer will vary with different authors.

Sir Robert Filmer, believing in the jus divinum, regum, would answer affirmatively, for he holds all power is derived from Divine investiture.

John Locke and Rousseau, who believe that the claim to legitimate government is based on contract, without which it cannot be de jure, would answer that it is wrongful and not legitimate, because not so derived.

The true answer is this: Though the primal parental power was ordained of God, it was not absolute, but in trust; therefore jural only in so far as it conserved the man-right for which alone it was ordained, and that no power can be jural, however derived, which defeats the Divine purpose for which it was conferred; nor can any Divinely ordained authority find warrant in its charter of power for any tyranny over man. It is akin to blasphemy to claim Divine sanction for a tyrannical use of power, because jural power was Divinely conferred for the protection of the right which tyranny destroys: to trace to the Creator the wrongdoing which his usurping agent has done under Divine authority to do right. Government has power to do wrong, but no right to do so. Right is power in dutiful exercise; power plus duty. Tyranny is power in exercise regardless of duty; power minus duty. This distinction between power and right � between the power to do and the right to do � is fundamental and essential.

The Divine order was for the good of man. The human instruments of carrying out that order have perverted it into fearful evils and brought untold disasters on the race. The Divine means to bless mankind have, by human sin, been so perverted as to be a curse to him, the destroyer of his rights and the foe to his liberty.

§ 39. The outgrowth of every nation forming a kindred race descended from a common ancestor, enlarged by the

process of adoption, is based, not only on the facts of liberty and the exhumed record of extinct kingdoms, but upon rational deductions from the nature of man. They are very fully set forth by Maine.¹ As successive generations of this race come upon the earth, growing from infancy to maturity, they are subject, without regard to their volition, to the existent polity, with whose original institution they had nothing to do, to whose power they never consented, whose authority, though they may protest, they can neither avoid nor resist. The man is bound to the environment of birth by a necessity from which he may revolt by expatriation, but in which, while he remains, he must acquiesce, because he can neither successfully resist nor change it by his own will.

The causes of this universal fact in human history it will be instructive and interesting to examine; why does man tamely acquiesce in a status in which his right and liberty and happiness are sacrificed to the will of a tyrannical despotism? Why will the instinct for individual freedom yield to the social instinct which binds him to the domicile of birth?

(a) In primitive society man's ignorance of this right, his duty and his destiny to the prescriptive possession of power under the existing order of things, would make him content with the animal life without the higher aspiration of an advanced civilization, and induce quiet submission to absolute power, rather than the heroic assertion of liberty of which he knows little and cares less.

(b) As the world grew more populous, vacant spaces for isolate life decreased, and isolation became impracticable; but if practicable, would it be desirable? On the contrary, the average man would prefer social life under a despot to the liberty of isolation. The alternative would be expatriation, but this would only result in an exchange of masters; and wherever he might go he would be confronted with the same bristling prerogative of power and a like disregard of liberty.

(d) But further, suppose he chafes at what others approve and is restive of the government which others support; how can he change it without their co-operative consent? If he dissents from restraints to which they consent, how can he get their consent to the change which he desires? All are bound together in one nationality, and the government for one must be for all; but if he and many wish a change, how can these obtain it if others refuse, without the use of force; and is a chance of change worth the blood of the conflict, or would force be rightful by the reformers against the conservators of the existing order of things?

(e) But are the advocates of change sure it would bring practical good � if they pull down are they sure they can build up a better structure of government? Are the co-operators in the reform agreed upon its terms; or as to what each would esteem an improvement on the existing order?

(f) The political is so closely united with the social edifice � the roots of polity are so intertangled with those of society � that to tear up the one may be the destruction of the other, and social relations may be wrecked by the upheaval of the government. This was one of the most powerful reasons urged a quarter of a century ago, and now in England, against the disestablishment of the national church and against other radical reforms, seemingly good in the abstract, but fraught with danger to society which made statesmanship halt in its progress.

(g) But if on the ideal theory of compact, or on any other theory, a change is proposed in the polity of people, how can it be effected? If on the former theory, the consent of all must be obtained to the compact � it cannot be compact if any dissent. On this theory all change is impracticable, and if the jus majoritatis be assumed as rightful, of what shall your majority be constituted? on restricted or universal suffrage? Shall all men, women and children be included? If not all, who shall be excluded and by whose fiat? Is it

not obvious, if we upturn the existing polity and set it aside as illegitimate, that the difficulty arises as to the terms of reconstruction upon which the millions of any of the nations of Europe or elsewhere can be so organized as to rebuild a new edifice on the ruins of the old? These causes suffice to make men

Man cannot fly society; he cannot destroy it, for that is anarchy. Change may not be reform. To attempt it by social revolution � by setting aside all the existing polity � is temporary suspension of social life; and how can its revival be effected � and what will be its consequences? Man, therefore, shrinks from revolution as from social and political suicide. It is the last resort of freedom against intolerable tyranny. Justum bellum quibus necessarium; et pia arma quibus nulla nisi in armis relinquitur spes.²

§ 40. Wisdom, in dealing with a question involving such momentous results, will direct us to the most practical remedy for existing evils with a satisfactory assurance of real good from the proposed change in polity.

These considerations dictate that, in all revolutions which promise success, we must not attempt any scheme which sets aside as illegitimate the existing order of society and

starts our new polity upon any abstract theory of what ought to have been or ought to be now and for the future. Wisdom dictates that we must start with the concession of legitimacy of organism somewhere, out of and through which we may evolve the reform polity we aspire to establish.

Man must accept the de facto social polity as his initial point. Ex hypothesi it must be regarded as the legitimate government, because the alternative is social anarchy. If you reject it because it exists without your consent, what

movement can you make which will have universal consent, and, if not universal, in its absence the consent of any portion against the will of the remainder will lack the essence of legitimacy as much as that you reject. We must have an initial point of departure. Dissolve all existing organism, and how can anarchy construct any other?

This conclusion of reason is confirmed by all revolutions in modern times. The English Revolution of the seventeenth century, the American Revolution, and the French Revolution of 1789, all assume, ex hypothesi, that the Parliament of England, the Assembly of the three Estates in France, the Legislatures of the Colonies in America, were legitimate. Back of them the chasm of social anarchy yawned, and the wisdom of those periods effected their great reforms in polity through the agency of those established organisms; de facto powers indeed, but assumed as de jure in order to an initial point conceded as such by all men.

It is not contended here that this assumption of legitimacy for the de facto government is essential to the validity of political revolution, but it is meant that except in anomalous cases where the agency of the de facto government is impossible, either because it is destroyed, or absolutely refuses to be auxiliary to the reform movement, the use of the de facto order as an agency of reform is most desirable and is best when it can be secured for the purpose. And without anticipating a definition of legitimacy in polity, we may say now that the government de facto, having by prescription at least colorable title, against whose claim by common consent no better title can be asserted, may very reasonably be taken to be the representative of political legitimacy. Mr. Guizot¹ defines political legitimacy to be a "right founded upon antiquity � upon duration." This is practicable legitimacy, though, as he says, true legitimacy is that "of reason, of justice, of right."² To avoid anarchy and the chaos of a resort to ideal legitimacy, wisdom will dictate, as the initial point of our reform movement, the

In the French revolution of 1848 Lamartine began his movement by the arbitrary assumption of power for the provisional government proclaimed by him and his associates, setting at naught the de facto authority of the kingdom. The King had fled, and Lamartine usurped by the voices of the populace the executive function in order to an initial point to the revolution. This was done as a substitute for the de facto power which had been abdicated.

When, therefore, acquiescence in an existing order is found by men to be dangerous to their liberty and destructive of their rights � when men demand reform in government because the government ordained as protector has become the destroyer of man-right � what must he do? Is he bound to submit, or can he resist and force a change?

The answers to these questions will be found in what has been already stated. Man's title to his liberty is from his Creator. It consists in self-use of endowments bestowed on him, under trust responsibility to God. God ordained society as the school of the race, and government as the organic social force was ordained to preserve social peace and order and to conserve the liberty of man.

These things being established, the related order of these social elements is thus: Man trustee of his liberty for God; society the Divinely ordained trustee for man; and government the Divinely ordained trustee for society. Man is the object of all this Divine arrangement. They are ordained for him; not he created for them. His liberty and right of self-use is the essential object of this Divine arrangement; their power is to be exercised for him � not over him. His good is the ultimatum of all their use of power, and their power is only legitimate in title or in exercise when it does justice to him in the protection of his right and liberty. But we have established another point: Man has not only the right of self-preservation, but God has made it his duty. It is his primal duty, therefore, to see that the Divine means

ordained for his protection shall not be perverted to his injury or his destruction. Man is under obligation of duty to take care that these Divine means, clothed with trust for his right, shall not be perverted into tyrannical defiances of the trust. He may reform this potential agent if he can �

To sum up, power and right are correlated. Both are Divinely ordained. Political power is vested in trust for man; right is vested in man in trust for God. Right is primal; power secondary. Right is fundamental; power is ancillary. Right is the end; power the means. Right is the good to be secured; power the minister � the servant of right. The Divine constitution is not jus divinum regum, but jus divinum hominum.

This political philosophy is that which has the sanction of Christianity and of reason. It is not the result of social compact, but the logical consequence of that intense individuality of man arising out of his sole responsibility to God, to conserve and develop which society and government were Divinely ordained. Right is God-given, and is neither given nor can it be taken away, but must be protected by the politico-social power.¹

§ 41. This philosophy was but little known to the ancient world. The State, not the individual, was the central object of the ancient political philosophy. Christianity, as we have seen, was the new force in modern civilization which made man the primal object and the state the auxiliary means for his good.² The writings of Milton, Sidney and Locke, of the French, English and American authors of the eighteenth and nineteenth centuries, while differing in abstract theories, have reached in a large degree results like to those to which our reasonings have conducted us. The great State papers of our Revolutionary period confirm them, and these results may be thus stated:

First. The government has no just right to power which it perverts to the injury of the right it was ordained to protect.

Second. Man, whose right is to be conserved, is bound by religious duty to use all means in his power to reform, change and reconstruct the government, so as that it shall conform its action to its trust duty to him.

The language of the Declaration of Independence is distinct and clear on this point:

"Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its power in such form, as to them shall seem most likely to effect their safety and happiness." ..."When a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security."

The fifth article of the Bill of Rights of Virginia, adopted June 12, 1776, is in accord with this:

"5th: That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community: of all the various modes and forms of government, that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal."

§ 42. The next question presented is, how shall man perform this duty of reformation, change and reconstruction? As a man is not alone but in social union with others, there must be a concurrence of action among the members of society in this matter which concerns all. The coetus � the

aggregatio hominum � the people � must do this. But who are the people, and how must the people act? We have previously defined the Body-politic^l to be "the organism in unity of the many human beings, associated by jural bond for the objects of the social state, in which is vested all rightful political power over its members for the common good of all." This Body-politic is composed of all the men, women and children in society. Each has his distinct individual right; for each society and government is the ordained trustee. Each, de jure, has a will of his own, and should have a voice in what is proposed; for if A and a thousand others wish a change, and B and a thousand others do not, or if all wish a change, but differ as to the new order, how is a decision to be reached? If A were alone in his isolation, he would have sole liberty to decide; but being associated with others, his liberty must be made consistent with the like liberty of others. How shall this action of all be now attained?

§ 43. At this point we have reached the domain of the "social compact," if practically it can ever be reached, for all who hold this theory admit that in order to validate social compact all must consent. If all, therefore, consent to a change and to any proposed form of change, the theory of social compact would prevail.

But in history and human experience no such unanimity has ever been reached. If, by the theory, it is essential in order to legitimate change, then it results that no change can be made and the existent tyranny must be perpetuated. But unanimity cannot be reached, for an obvious reason. The great mass of this Body-politic have no wills to decide. Children, idiots and lunatics cannot decide. Women, in most countries, are excluded from a voice in the decision. The determinate body in all such cases which history records is composed of not more than one-fifth of the whole number of society. What then shall be done?

he says: "The choice by a plurality of votes is itself the result of convention," and supposes that unanimity must at least for once have subsisted between them.¹ He assumes ex hypothesi that the special compact was, at some unknown period, adopted with unanimity, and that by its terms future action was to be decided by a plurality. But how does this prehistoric compact bind the living generation, and how can a living minority be jurally bound by a majority under an hypothetical compact they never agreed to, made by an ancestry at a period whereof history makes no record? Thus, to maintain his theory, he resorts to an hypothesis of an event which never happened, and which, if it had, would, on his own principle of needed consent lay all, have no obligation upon a living generation who dissented from it. This difficult problem is insoluble upon any theory of compact. Political science is a practical science, not a theory. It formulates this postulate: the de facto Body-politic and the de facto government must be assumed to be de jure, not because it is upon any original theory, but as an initial point � as the origin of political action � because the alternative would be political anarchy and social chaos.

If it is objected that neither the de facto government, nor the de facto Body-politic, is de jure, the answer is, can you establish any government or Body-politic which is de jure? If the de facto be void because without your consent, will that which you substitute be valid without the consent of all; and how can you hope for this universal consent?

Hence reason ex necessitate sanctions the above postulate. All revolutions or reformations in government have their start with the de facto government, or have, by usurpation and force, created a de facto government and Body-politic as the initial point for its reformation or revolution.

The English Revolution of the seventeenth century, the American Revolution of 1776; the French Revolutions in 1789, 1848 and 1870, have started with the assumption of the

de facto order of things as de jure in order to the accomplishment of their reform or revolution.

If the objector still asks, is then a de facto government unchangeable � must mankind submit eternally to its domination? the answer is clearly, no. The de facto government may be used as an instrument for the proposed reform, or oven for the proposed revolution, as an initial point, but not as the terminal, because the alternative to its acceptance as such is chaotic anarchy � social disintegration � political death. The satisfactory reasons for this conclusion may now be stated:

first. The Body-politic was not framed by man or under human compact. It grew and was not made; it grew under the ordaining providence of God. Its existence was by Divine order, not by human consent.

Second. Man in his highest condition cannot live out of society; his social status is his supreme right. His social liberty can only exist for him as a social being, and hence this liberty ceases when his social status ends. To assert this liberty for him by destroying that status, is to seek to secure such an equality for his liberty when the substance to which it belongs is gone. Anything to avoid anarchy, therefore, is a primary and essential security to his liberty; for liberty dies with the extinction of society.

Third. But to the objector who reasons for an a priori theory of natural right, the answer is easy. To reach some practical result, Rousseau's violent hypothesis is that the right of a majority to control was a term in the original contract of society, while, on the contrary, we insist that the de facto Body-politic has, by long acquiescence, been sanctioned by all, and may well, therefore, be deemed a de jure Body-politic by universal acquiescence, if not by universal consent.

Fourth. Politics is a practical science, not a mathematical one. The interests involved are not abstract, but personal. No theorem in this science can be true which would wreck society, transform it into chaos, in order to secure the social liberty of the man. If the de jure order is insisted on, we

must first determine what it is. The answer will be found in a babel of confusion of tongues. Therefore, in an impossibility of consensus as to what is de jure, what recourse have we but to assume as de jure what for generations has been acquiesced in by a whole people? In order to reconstruct the ship of state, it is madness to blow it up in mid-ocean. We must use it in order to repair it. This is true wisdom, and therefore is a sound canon of Political Science. While, on the contrary, it is folly to call that science which wisdom condemns and reason repudiates, because it destroys what it proposes to save and reform. If we cannot have a de jure initial point by common consent, we can reject that which is the nearest approach to it, that is, the government and social status which for generations has been acquiesced in by the people who proposed to deal with it.

§ 44. Let us now see to what uses we can adapt the de facto government in the reform and reconstruction we propose in our social policy. It is obvious that complaint of the workings of any de facto system will not often come from those who wield its power and enjoy its benefits. It is not probable that the tyrant will confess his sins and aim to overthrow his power or to reform his administration, nor is it usual that the parasites of the existing order � the recipients of its patronage � the pensioners on its bounty � the armed force which has no thought but loyalty to its leader � or the classes whose peculiar privileges are dependent on the de facto system, would readily take part in a movement fatal to their selfish interests.

But the power of public opinion � the clamor of an angry population � the sense of justice even with those interested to resist reform, and the threats of violence as a measure to enforce the proposed changes, have in modern times prevailed to wrest power from the hands that abuse it, and restore liberty to an oppressed people in all parts of the civilized earth; and, as already intimated, these results have come through the agency of the de facto power whose authority was to be overturned or reformed. Through the

regular Parliament of England from 1641 to 1666, through the French Assembly of States regularly called in 1789, two kings lost their heads, kingly power was overturned; and through the Parliament of England in 1832, the reform bill of 1832 was passed revolutionizing the government of England with the active agency of William IV.

If the de facto government refused to aid the reforms which the Body-politic imperatively demanded, shall the latter still submit to the perpetuation of the tyrant? Clearly not; the right of forcible revolution is always the reserved right of an oppressed people against any government. But if the de facto government yields to the popular demand so far as to aid the reforms which are proposed, what can it do in order that this Body-politic may act in the consummation of its purpose? As a practical problem its solution has been found in getting the de facto government to furnish the legal and regular method through which the Body-politic may utter its voice.

§ 45. It is at this point we find the advantage which is derived from long historic struggle of the people with despotism. Century by century, generation by generation, year by year, liberty makes its continual claim, and concession after concession is yielded to popular demand, until popular power at each step increases its hold upon the de facto government, until it is ready to yield again and again. Power, because of this position, possesses the vantage ground of liberty, for it may reply to every demand of liberty, "Take what I am willing to concede, but social chaos is the alternative." Liberty has generally shrunk from the alternative and accepted the involuntary concession. Hereafter we shall see how, by gradual advance, but by persistent purpose, our own great race has risen from slavery to freedom, and how others, rather than brave the terrors of revolution and social convulsion, have, in hopeless submission, purchased peace and order of despotism by a loss of liberty.

§ 46. It seems strange at first that the tyranny of one or a few can so long suppress the liberty of the mass, but a

few considerations will solve the mystery and make it more strange that liberty should ever succeed against established despotism. The views presented in § 39 will explain why the spirit of liberty among various races of men has been so inactive and dormant. History proves that power never voluntarily relaxes its hold, and only yields to popular will when by sturdy and persistent demand it compels the recognition of the right of the people. The causes which have stimulated the people to this attitude of resistance have arisen, as we shall see, from race characteristics and from the peculiar education of some particular nations.

On the other hand, the agencies of despotism are ancient, organic and formidable. The sentiment of submission to long-accustomed authority is almost a superstition out of which were evolved the heresy of the Filmer school. There is a divinity that doth hedge a king so that whatever is, seems right; but besides this prescription in favor of de facto power and the revolting alternative of forcible revolution, there are many moral and material methods by which power perpetuates itself against the protests of freedom.

The first of these is patronage, through which society itself is divided into two classes, the one of which is constituted of officials who, being supported by the government, rally to its support themselves, their kindred and friends. Then there are parasitical interests, privileged monopolies and the like, which, being fed by the bounty of the government, lend it their support and that of their retainers. The nobility established castes and classes, and all the people who depend on them, being in the same case with the government, may also be relied on to uphold it. These various dependents, with all their several dependents, ramify society, and make the proteges of power a band of faithful adherents to conserve the existing status against the hostility of the mass of the people. Society is thus separated into benefit-receivers and burden-bearers � privileged and unprivileged orders � tax-consumers and tax-payers, and though the mass may be more numerous, the dependents on govern-

ment are sufficient in number, influence and wealth to counteract in a large degree the tendency of revolution and reform by the mass. Another and more fearful instrument of despotism is a standing armed force, which, organized to and habituated to the discipline of obedience to authority, are the reliable defenders of power against the unorganized forces of rebellion. It is obvious that the de facto government, thus defended and upheld, will not easily be made a medium for reforms which will disturb the status of the privileged classes and their interests. They use the government for their benefit, faithfully oppose for it and themselves the intrusive interference of malcontents with a system eminently satisfactory to those who feed upon it, though adverse to the interests of the people who bear its burdens and reap none of its benefits. Reform will be a slow growth in the face of such a despotism.

§ 47. But despite hinderances, governments de facto have been efficient in aiding substantial reforms which divested them of authority and placed it in hands hostile to their traditional policy. In two instances in the last century, revolutionary reforms have been consummated through the agency of governments, whose natural attitude of hostility to them would have made their action seemingly impossible.

In 1789 the oppressed people of France clamored for an assembly of the states for radical reform in its policy. The Crown, in acquiescence with other orders, called them to Paris. The tiers-�tat forced the battle with the established order of nobles and clergy and formed that famous assembly which upheaved the monarchy, leveled the social order to an unheard-of extent, and shook every throne in Europe by its audacious challenge of all existent authority, and by its universal proclamation of liberty, equality and fraternity. The government de facto called the body into deliberation whose edicts established a democracy on the ruins of the most despotic monarchy in Europe.

The Parliament of Great Britain, in 1832, with the aid of William IV., operating on the reluctance of the House of

Lords, passed the great reform bill which revolutionized the government and gave dominion and permanent influence to the Commons in the future direction of British affairs.

Without adverting to the English Revolution of the seventeenth century, or to the American Revolution of the eighteenth century, it may be taken as true, that popular movements for reform will be heard and headed by de facto governments, and that through their instrumentality changes may be consummated in the interest of free institutions.

§ 48. The de facto government in all these instances acts instrumentally in furnishing the legal sanction to the organism through which the Body-politic may work a change in the structure of the government and in limitation of its powers. Minor reforms may be effected by ordinary legislation under the influence of public sentiment, but the most important and efficient activity of the de facto government in political reform lies in creating the organ through which the will of the Body-politic itself may be made known. The fundamental work of the Body-politic is to construct the government � to define its powers, to distribute them between departments, and to shield individual right from any jural power. This is constitution making; the Body-politic is the constructor. How is this to be done?

We have seen that the Body-politic is composed of all the men, women and children of the state. It is impractical for all of these to act. Children and imbeciles, by natural incapacity, partial and complete, are obviously incompetent to take part in this great work. For reasons unnecessary now to be considered, women have been excluded in most nations from participation in public affairs. How, then, shall the Body-politic act? This question can only be taken by assuming the Body-politic de facto as the legitimate Body-politic, or we may call it the representative Body-politic. To admit, upon any theory, the Body-politic de facto into any proposed Body-politic de jure, would end in confusion. Who, besides those actually admitted into the de facto Body-politic, should be introduced under your theory? What

portion of the excluded classes ought to be included? What hope of communis consensus on any proposed change? In the absence of any possible consensus, we are driven by analogy to reasons already adopted in respect to the de facto government, to take ex hypothesi the Body-politic de facto as the Body-politic de jure. The alternative to this assumption is anarchy. We may then assume that, while the Body-politic de jure is composed of all men, women and children in society, the de facto Body-politic will be composed only of those admitted to suffrage under the existing order of things. The first is the real Body-politic; the last the representative Body-politic; and this last is in substance the plh~qoj politw~n of Aristotle � the mass of citizen voters.

We are in a dilemma between accepting the de facto Body-politic as legitimate, or, by its rejection, plunging into social chaos and political anarchy. The acceptation of the de facto Body-politic is conservative of social order and hopeful of political reform; the rejection of it, upon a theory of what ought to be the Body-politic de jure, is like dynamite � it destroys social bonds and wrecks hope of political reform.

§ 49. Nor is the acceptance of the de facto Body-politic as ex hypothesi de jure open to serious objection when closely examined. The representative voter in the de facto Body-politic, where suffrage is universal, is really the head of the family. The Body-politic is not a collection of individuals, but an aggregation of families, of which the chiefs are the representatives. No great evil can result to the family by being excluded from personal participation in public affairs, when they, as collective individuals, are represented by their chief. The patria potestas of archaic society thus comes into play as a constituent factor of this representative Body-politic. In Great Britain the voters are about one-tenth of the

population; in the United States about one-fifth; and where suffrage is universal it may be assumed that the paterfamilias wielding the patria potestas, is a representative of an average of himself, wife and throe children, the material constituents of the Body-politic de facto. Thus it will be

seen that the de facto Body-politic is substantially representative, and that as each suffragan intelligently voices the will, rights and interests of his own family, no essential wrong can be done, and the true representative of right of all may be held as embodied in this de facto Body-politic.

§ 50. In considering the powers of this representative Body-politic of the real Body-politic of all men, women and children organized in social union, our definition has shown that all rightful political power has been vested by the Divine Being in trust to promote social order and civil liberty for all its members. The powers thus vested in this Body-politic are not autocratic but in trust � not absolute but limited to the purposes for which they were delegated, which trust involves protection of the inalienable rights of every member of the Body-politic and can never be used de jure for the impairment or destruction of them. This jural political power representative of the Body-politic is what we call sovereignty, but is neither absolute nor autocratic, but is delegated by the Supreme Being and limited by the reserved rights of individuals, which are inalienable by the man himself, and indefeasible by any other man or any body of men.

This view of the authority of the Body-politic shows that man has certain rights which are beyond the reach of the power of any government or of any Body-politic. This Divine agency ordained to protect this Clod-given right cannot have Divine authority to assail and destroy them, and this limitation upon the real Body-politic for a stronger reason is applicable to the representative Body-politic, so that the duty of the representative Body-politic is so to use its sovereignty, thus limited in power, as to promote the maximum of good to every member of the Body-politic � that is, the largest social liberty to every human being � the greatest good to each � consistent with the greatest good to all, and not to achieve the greatest good to the greatest number.

§ 51. In thus conserving the functional agency of the de facto government and the de facto Body-politic for the

reform of political institutions as the only alternative to social chaos or violent revolution, we do not mean to deny, but really to affirm, the right of revolution in the Body-politic against all established systems of government. The right and duty of men are superior to any claim by prescription of government. We have endeavored to show that in every mode in which reform may be admitted, whether by peaceable or forcible revolution, we cannot best protect the action on any de jure principle, but must resort to the use of the existing de facto order to accomplish our purpose, or we shall be driven in violent action to an assumption or usurpation of initial authority as de facto legitimate to achieve like results. No political authority can be adapted to the solution of this political problem. We may approximate, but cannot hope to reach the de jure. To approach the jural, in our legal and revolutionary methods, is all that can be hoped for. Political science is a practical science, not a mere theory. We must aspire to the jural, and, while never attained, yet it is sufficiently so, when, as nearly as possible, it is conformed to the jural sovereignty of the real Body-politic in dealing with the rights and liberties of the individual man. The most solemn trust which can be devolved on man is the

duty of constitution-making confided to the representative Body-politic; the highest honor which man can merit is in the successful discharge of that duty; and the greatest crime he can commit is in treason to this trust in the usurpation or abuse of his powers in constituting the government and in the definition and limitation of its authority.

§ 52. We have heretofore established as the legitimate result of practical political science that it is best and safest to clothe the representative Body-politic with the sovereignty vested in the real Body-politic, and with authority to change the old and construct a new civil polity, that sovereignty being limited, as has been indicated previously,¹ so as to secure the rights and liberty of the individual man, and not to trench upon his inalienable and indefeasible rights, which are not rightful within the sovereignty of the Body-politic. As we have seen, this representative Body-politic, called by Aristotle plh~qoj politw~n � the mass of suffragans, � and in a country where suffrage is moderately restricted or universal, this de facto or representative Body-politic may be regarded as a federation of families, each chief of which casts the vote of the family, � that is, we find in this a return to the patria potestas of primitive society in this representative Body-politic. As the de jure Body-politic is in theory the rightful sovereignty and principal, and government but its agent, this representative or de facto Body-politic in practice must be taken to be that sovereign power which creates government by making a constitution for it, delegating its powers, and distributing them between departments at its pleasure. The authority of this Body-politic may be regarded as the combined powers of all the individuals composing it, vested in each by its Creator to enable them, in social union with secured liberty of self-use, to do their several duties to him. In the language of Bluntschli, "Each (man) is at the same time member of the sovereign and subject to the sovereign."²The organic force of society � the government � must be so

considered, its powers so defined and limited, and its machinery so arranged as to conserve the rights and liberty of the man and to promote the social welfare of the whole. This enormous machine must ex necessitate be wielded by human hands and guided by human beings, in whom the selfish principle always threatens injustice and wrong to the subject of its power. Upon governments, therefore, wisdom and experience dictate there should be such restraints as to their possible usurpation and abuse of power, as well as such definition and limit to the exercise of their functions, as will secure the liberty they are Divinely ordained to secure. The device by which these important objects may be obtained we call a constitution (con and sto, to stand together).

God has not ordained any form of government, though he has ordained government itself, thus providentially indicating that the form which the constitution shall give to government is left to the sagacity of each people to fit and adapt to its condition. The form fitted for one people is not adapted to all, and, therefore, the constitution which the Body-politic should adopt for one people may properly be very different from that which should be adopted for another.

What society must secure to the man is the maximum of social liberty to each, consistent with the like liberty to all others. He must be left as free as possible, so that his freedom shall not detract from the equal social liberty of his fellows. It follows from this, that where man is controlled by moral force within him, which makes him respect the social liberty of others, government in so far is not needed to control him; but where he is licentious and not self-governed, government is needed to curb his action, which he will not himself restrain.

For if we suppose the sum of force needful for the control of any man to be fixed, it will consist of two factors: the internal and external. The internal, or moral, force is that which he himself exercises in directing his action; the external force is that which the government must exercise

where self-control is not sufficient properly to regulate his action. As man rises in the scale of moral intelligence, he becomes the better able in freedom to control himself. As he falls in that scale, his capability of proper free use decreases and external control is needed properly to regulate his conduct. When, therefore, the moral force becomes equal to the entire force needful for his control, governmental force may be zero; but when the moral force is zero, the governmental force must be all. This may be well illustrated by the formula: F = M + G; where F represents the total force needed for control, M the moral force, and G the external force. This formula shows that where M is equal to F, G may be nothing; but where M is zero, G must equal the entire force. From the above we deduce the following maxim : Give to man the maximum of liberty and to government the minimum of power consistent with conservation of social peace and order.

The degree of liberty for which peoples are fitted is therefore very different, and liberty is a prize which God holds out as a reward of moral elevation, because it alone can make the highest liberty consistent with the social order of the people. Free institutions are therefore the achievements of a people through a civilization in which personal self-control makes freedom possible without imperiling social order.

Barbarians cannot hold free institutions when given to them, because the forces essential to maintain social order over savage natures would destroy freedom. The supremacy of moral force in the heart of the individual man is essential to his freedom over the external control of government. If man will control himself by self-government, he may be free; if he will not, government must limit his freedom by such power as is needed to keep him in order.

To sum up: God ordains society for man and ordains government for society, and leaves to man's wisdom his noblest function, the construction of a constitution for the government. As society is ordained for man-right, and government is ordained for social order, so the constitution must

be ordained to control government in order that it may protect individuals and preserve society. A constitution may be defined as any ordination by the Body-politic which constructs the government for the state and prescribes and defines its powers. It may be institutional, an outgrowth of institutions, or a written instrument. It is the act by which the Body-politic constitutes the government and delegates and limits its powers. The Body-politic holds the sovereignty and gives powers to government. The Body-politic is creator: the government its creature; the Body-politic is principal: the government its agent; the Body-politic is master: government its servant; the Body-politic is a band of cestui que trustent for which government is trustee; the Body-politic is the de jure sovereign: the representative Body-politic is the de facto sovereign. The government, as agent, derives all the authority it has, for it has no original authority, directly from the real Body-politic, though indirectly from the representative Body-politic. The Body-politic is sovereignty with original powers: government is not sovereignty, for it has no original powers, but only those derived from its sovereign. The Body-politic is the primary "powers that be ordained of God" to create and control government, which is only the secondary "powers that be ordained of God."

§ 53. Sovereignty is the essence of power from which flow emanations of powers. Sovereignty is the dynamo � the motor force in all civilized polity. Its emanations in the exercise of powers by its agents are distinct from it � do not decrease it, but leave it in its normal status. We must not confuse this essence of power with its emanations.¹ Sovereignty, as essence, is one, indivisible, ungrantable, undistributable and always reserved; governmental powers, as emanations of this essence, may be granted, distributed, divided or reserved. This important distinction between sovereignty and governmental powers � the one as the essence, the other as emanations therefrom � will not find recognition in British writers

prior to the seventeenth century, or in such as Blackstone in the last century. Thus Blackstone says:^l "By the sovereign power ... is meant the making of laws." This doctrine is equivalent to the English maxim that the British Parliament is omnipotent; but a learned commentator, while denying this dogma of Blackstone, has held, in distinct language, that the legislative powers are no more than emanations from the sovereignty, where, and where only, that legislative essence which constitutes sovereignty can be found.² The same commentator adds: "The power which every independent state or nation ... possesses in relation to its own immediate concerns is unlimited, and unlimitable, so long as the nation or state retains its independence; there being no power upon earth, whilst that remains, which can control or direct the operations, or will, of the state in those respects. This unlimitable power is that supreme, irresistible, absolute, uncontrollable authority, which by political writers in general is denominated the sovereignty; and which is by most of them supposed to be vested in the government or administrative authority of the state, but which, we contend, resides only in the people, is inherent in them and unalienable from them."³

"Power in the people is like light in the sun, native, original, inherent, and unlimited by anything human. In government it may be compared to the reflected light of the moon, for it is only borrowed, delegated and limited by the intention of the people, whose it is, and to whom governors are to consider themselves as responsible, while the people are responsible only to God; themselves being the losers, if they pursue a false scheme of politics."⁴

That the ultimate supreme power is in the people is also the doctrine of Locke.⁵ The same doctrines are announced in the Bills of Rights of Virginia, Massachusetts, and the

¹ Vol. 1, p. 49, Lewis' Edition. ²1 Tucker's Blackstone, Appen., pp. 5, a ³ Id., pp. 8, 9.

⁴ Burgh's Political Disquisitions, vol. 1, Bk. 1, ch. 2. 6 Civil Government, ch, 13, p. 261.

others of the original states of our Union. This may be regarded as specially American doctrine, very little comprehended by any of the European writers. Even Bluntschli, in quoting Washington's farewell address, in which he says: The basis of our political systems "is the right of the people to make and alter their constitutions of government,'' seems to take but a confused idea of it while he admits it. Later English writers, many on the continent, while in the main conceding the truth of the doctrine, do not seem to understand it in the mode in which it has been already set forth.

Mr. Justice Matthews, in the case of Yick Wo v. Hopkins,¹states the doctrine clearly thus: "Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of the government, sovereignty itself remains with the people, by whom and for whom all government exists and acts."

It follows from this relation between the Body-politic in its constitution-making power and the government in the ordinary exercise of political powers � the first holding original authority, and the latter only derivative � that when government exercises powers which the constitution allows, its action has the full force of the sovereign will; but when the government does what the constitution does not allow, the action of the government is ultra vires and void. This is the great American discovery in political science. It may be stated thus, as a political axiom in America, that the constitution is supreme and paramount to all acts of all departments of government; and that any such act repugnant to, or inconsistent with, the constitution is null and void, and by the court shall be held of no force or effect. The supremacy of the constitution-making power over all acts of government, whether legislative, judicial or executive, lies at the foundation of our political law, and is, in its full force, the great American discovery in the science of government.

The authority to make constitutions is in the Body-politic. The Body-politic utters its sovereign will through the constitution which calls government into being, organizes its functions, defines and limits its powers, and declares to this, its creature, by its creative fiat, "thus far shalt thou go, but no farther." This principle rejects wholly the idea that any government is Divinely entitled to servile obedience, or to any obedience where it violates the law of its creation or sets at naught the charter of its authority. An aristocracy or democracy which obeys not a constitution, under which it derives and exercises power, so far from having claim to be jus divinum or supreme as the "powers that be," is a usurper of the fundamental authority of the people, which is the true jus divinum, because it has primary and fundamental powers that are ordained of God. The author of Paradise Lost, in his memorable defense of the people of England, has vindicated the doctrine thus stated, which has become an axiom in American politics. This doctrine may be found germinally hinted at in the writings of Aristotle, and though the translations of this great Greek philosopher somewhat differ, yet it seems to be well defined by him that there is and should be permanent and paramount laws, the supremacy of which there is no power to oppose.¹In Magna Carta, June 15, 1215, page 61, the paramount authority of this great charter is expressed in these terms:

"Et nos nihil impetrabimus ab aliquo, per nos nec per alium, per quod aliqua istarum concessionum et libertatum revocetur vel minuatur; et, si aliquid tale impetratum fuerit, irritum sit et inane et nunquam, eo utemur per nos nec per alium."

The practical inefficiency of this declaration of the Great Charter, owing to the dogma of the omnipotence of Parliament, made the declaration rather abstract than practical; but in some early cases of the Courts of the States, notably in Hawkins v. Kamper,² in Virginia, and in other cases in other states, the doctrine was judicially established in its application to the paramount authority of state constitutions.

But in the great case of Marbury v. Madison,¹ the doctrine is stated with so much clearness and force by Chief Justice Marshall, speaking for the Supreme Court, that a full citation of the language of that decision may properly here be made:

"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designated to be permanent.

"This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

"The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between governments with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

"Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

"If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

"Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

"This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

"If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

"So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

"If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legis-

lature, the constitution, and not such ordinary act, must govern the case to which they both apply.

"Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

"This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet in practice completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is proscribing limits and declaring that those limits may be passed at pleasure.

"That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection."

§ 54. This principle, the supremacy of the Body-politic as constitution-maker and the subordination of the government as the delegated agent of the Body-politic, with no powers but those derived from the Body-politic by virtue of the constitution, is therefore the foundation of American Constitutional Law. All acts of every department of government, within the constitutional bounds of powers, are valid; all beyond bounds are "irritum et inane" � null and void. Government, therefore, has no inherent authority, but only such as is delegated to it by its sovereign principal. Government may transcend the limits of this authority, but its act is none the less void. It cannot, by usurpation, jurally enlarge its powers, nor by construction stretch them beyond

the prescribed limits. The idea that usurpation or necessity or a supposed extension as the consequence of custom or progress of society can make jural any power not constitutionally conferred is contrary to American political science, fatal to the liberties of the people, and is only a wicked pretext for the violation of sworn obligations. Such an idea would really mean this � that persistent usurpations of power by a government, acting under the prescribed limitations of a written constitution, could amend and change that constitution, which by its terms can only be amended and changed by the Body-politic itself. It would make the government a self-creator of its own powers, instead of the creation of the Body-politic with only delegated powers. It would take sovereignty from the people and vest it in their government; and transfer all political authority by flagrant usurpation from the Body-politic to the omnipotent government. Written constitutions would be destroyed, and the self-usurped omnipotence of irresponsible government would be erected upon their ruins.

§ 55. The constitution may be written, or institutional and unwritten. A Body-politic by institutional methods may organize government and define the limits of its authority. Thus, customs and precedents have great authority, and these without reference to any written instrument whatever. In England its constitution is largely a structure founded on precedents and customs, and yet there are great papers to which reference is always made as of great and permanent authority. Thus Magna Carta, as we have seen, confirmed in many reigns, has been the embodiment of free institutions, a departure from which meets public condemnation, and whose very terms, as we have shown, make whatsoever is contrary thereto void and of none effect. In the reign of Charles I., the Petition of Right by the House of Commons, sanctioned by the King, was a quasi-constitutional compact between the King and the people as to the true line between prerogative and popular power; and in 1688 the Declaration of Rights presented to the Prince and Princess of Orange

became, by the act of 1 William and Mary, the embodiment of the principles upon which constitutional monarchy ever since has been founded.¹ For this reason Mr. Gladstone has well said that "the British constitution is the most subtle organism which has proceeded from progressive history" � it is an institutional constitution, though not written. Such a constitution, whose provisions are to be derived from the changing precedents of six centuries of historic progress, must be radically defective; for as these precedents are made by the delegated authority of Parliament, it results that the government may augment its own powers at will, and thus usurp the omnipotency which should only belong to the Body-politic � the people.

In these American states the history and usage for more than a century has settled that the structure of government and the definition of its powers by the Body-politic should be prescribed in a written constitution, leaving no honest pretext for transcending the bounds fixed thereby, in the uncertainty of near historic precedents and customs. Sworn to obey that written constitution, the officer who violates it must stand convicted of a perjured usurpation of authority.

§ 56. In this country the early practice was that the Body-politic should, through its representatives in a convention elected by the voters, adopt a constitution and nothing more.

The question as to the right of suffrage in the election of this convention, the number of its members, how representation should be distributed among the people, when and how the election is to be held, when and where the convention is to meet, have been determined by an instrumental, not an enabling, act passed by the de facto legislature of the Body-politic. This use of the de facto government is, according to the views already set forth, a necessary expedient to avoid the alternative of chaotic confusion and social anarchy; for how could the Body-politic, composed of all the men, women and children in society, settle these practical questions themselves. A resort to the existing order of

things is, therefore, inevitable, if action is to be obtained without social disintegration. But it must be well understood that the instrumental act of the de facto government is simply a medium through which the potential sovereign, the Body-politic, may utter its authoritative voice. The convention, when met, is the incorporate representative of the real Body-politic, the sovereign people.

When the convention frames a constitution, as that is its only charge, it is functus officio. Whether its consummated work shall be submitted to a vote of the people, and if so, what shall be the basis of suffrage, and what vote shall be necessary to give it final effect, are questions as to which there has been no settled canon in our political science and no uniformity of custom.

It may be stated, however, as a fact, that all the constitutions of the original states were ordained by convention, without a submission of the constitution so framed to a popular vote for ratification. The deliberative act of the representatives elected by the Body-politic was thought to have the sanction of the latter without a subsequent vote. And this was unquestionably the general view of all the states when, in the Federal Convention which composed the constitution in 1787, their consummate act was submitted for ratification to each state through its separate convention, without any subsequent sanction by the popular vote of its people. The amendments to the Constitution of the United States are to be adopted by the Legislatures or Conventions of the several states, without the necessity of submission to a popular vote.¹

During the last half century or more it has been the usual practice for the convention to frame the constitution and then submit it to a popular vote for final ratification; but this practice has had exceptions, and it may be safely stated that the validity of a constitution will not be held to depend upon its final ratification by popular vote.

The first constitution of Virginia, drawn by George Mason, was adopted in convention of the State on the 20th day of June, 1776, which was not ratified by popular vote. It was judicially held to be valid in Kamper v. Hawkins,¹ and continued in full operation until the Constitution of 1830 was adopted. In that year a convention was called by legislative act to amend the constitution, and it decided to submit the constitution it proposed to the voters entitled to suffrage under the proposed constitution, which greatly enlarged suffrage beyond what had been allowed under the Constitution of 1776. It was ratified by that popular vote. The Constitution of 1850 was adopted in convention and submitted to a popular vote for ratification. The Constitution of 1870 was adopted in convention and ratified by popular vote, but, by its twelfth article, amendments thereto may be proposed in the Senate and House of Delegates, and if agreed to by the majority of the General Assembly next chosen, shall then be submitted to the people for ratification, and upon such ratification shall become a part of the Constitution.

The practice in other states need not be especially adverted to, except that recently the State of Mississippi adopted a constitution in convention, which was established by the act of the convention without a submission of it to the vote of the people.² Whether such a constitution so established shall be held to be the constitution of the state, without the ratification by popular vote, has been questioned. All doubt of its validity would seem to be settled by the fact that the Constitution of the United States is held to be binding upon each of the states of the Union, though it was ratified by a convention of the people of each state, and not by any submission to popular vote. If, therefore, a constitution of a state should be held invalid because not ratified by popular

² During the year 1898 Louisiana also adopted a new constitution, without submitting it to the people. The validity of the Constitution of

the State of Mississippi was affirmed in the case of Williams v. Mississippi, 170 U. S. 213, but it seems that the question under discussion was not raised in the case.

vote, it would raise a doubt as to the validity of the Constitution of the United States, which was ratified by conventions without submission to a popular vote.

§ 57. In case of submission to popular vote for ratification, a question may arise whether it may be ratified by a majority vote, or whether some other larger vote should be required. This question will be considered more fully under another head hereafter, but it may here be said that, ordinarily, in any state where the interests of the people are not radically antagonistic, but are harmonious � where the population is homogeneous, not heterogeneous � a numerical majority of the people may be safe. As has been said, the majority has no natural and jural right to control the minority; for when two antagonistic interests exist in a state, to give the control to that which has a majority of votes would give to that the right to destroy the other for its own benefit. Ordinarily, however, the mere diversity of interests will not make ratification by a majority vote a serious, much less a radical, evil; for as a constitution is a permanent system, regulating general and not special interests, the voters will act rather with a view to a permanent protection of their interests for all time, than for the promotion of any one of them by a mere temporary advantage.

But the propriety of regarding the diverse interests involved in the adoption of a constitution has been signally illustrated in the history of our Federal Constitution. That was to be a compact between thirteen separate states. Each was required to separately ratify it in order to be bound by it.¹ None could be bound but by its own ratification. The numerical majority of the states taken as a whole could bind no single state, unless a majority of its convention ratified it. This instituted the concurrent majority of many instead of the numerical majority of the whole. So also amendments to the Constitution of the United States depend on the concurrent majorities of the many (three-fourths of the states), and not on any majority of the whole,

and on one point the equipollency of the state representation in the Senate cannot be taken away without the consent of the state affected thereby, though the unanimity of all the other states were secured.¹

§ 58. The representative Body-politic so assembled in convention for the formation of the Constitution is, as we have seen, charged with a delegated duty from the real Body-politic, so to organize the government, to prescribe and limit its powers, as to conserve the liberty of the individuals composing it. In a proper sense it may be considered to be a method by which the individuals of a state make an agreement to be bound by this representative act as that of the sovereignty of the Body-politic. In other words, we reach here, if ever, the domain of social compact, not as originating society, or as pre-existent to it, but as the act of already existing society, laying the foundation and raising the superstructure of the government, the organic social force, upon principles agreed upon as just in such manner as approximately, if not completely, to gain the universal consent of the real Body-politic. It is, as has been said already, the solemn and imperative duty of this Body-politic, representative as it is of the real Body-politic, to conform its action to the conservation of the liberties and interests of the people.

For it must never be forgotten that as the actual consent of all is impracticable, for reasons already assigned, the work of constitution-making by convention of the representative Body-politic, being a delegated trust, must be performed under a solemn sense of responsibility for its just discharge; not to obtain advantage for any portion of society at the expense of others, but to accomplish the end of all social polity in promoting the welfare of each and all, and in protecting the liberty and right of each individual to the maximum of good consistent with social peace and order. A notable example of this work at this stage of organization is presented in the Federal Union of Commonwealths established on this Continent in 1789.

As will be shown hereafter, thirteen free, sovereign and independent states made a compact resting upon the consent of each expressed in the convention of the people of each of them; and thus, by the terms of the Constitution itself, established it "between the states so ratifying the same."¹ It was thus not a social compact, but an interstate compact, with the free and separate consent of each by its own convention; not by the consent of all the inhabitants of the thirteen states, nor by the consent of all the inhabitants of each state, but by the distinct organic consent of the convention of each as a separate Body-politic, thus constituting the Union � a multiple of these bodies-politic, for the common purposes defined by the terms of the written compact. It is a federal compact of states, not a social compact of men; a federation of which states are the units, not a social compact of which men are the units; it is a constitution based on the unanimous consent of the states as members to it, not on the universal consent of the individual men who are subject to its authority, but by the organic consent of the several states of which those men are representative citizens.

§ 59. In further consideration of this work of constitution making, it is the ultimate requirement of all political systems in modern times, and in a large sense in all eras, that the organic social force we call government must be vested with three classes of powers in order to make its organization efficient for the social state.² The first of these is the ordainment of rules for the civil conduct of men in their relation to each other, and of each to the state. These rules, which should be made to protect each in his liberty against all others, must prescribe what is right and forbid what is wrong, and are generically called laws. Law is the expression of the will of the organic social force (government) in order to conserve the peace of society and protect the liberty of its members. This is the supreme power in the state � the Body-politic acting through the legislative department of the government.

The second of these is that which applies the law so made to special cases, which arise from the inter-relations of men by contact and contract. It does not make law, but declares the law as applicable to each of such cases. This is the supreme power of the Body-politic, acting through the judicial department of government.

The third of these is that which brings before the judicial department the persons and things as to which contention has arisen for the maintenance of right against wrong; and which executes the mandate of the law as adjudged by the judicial department. These two functions are the supreme power of the Body-politic exercised through the executive department of government.

It is very obvious that as the executive and judicial departments make no rules and initiate no action against the right or liberty of the citizen, but are only means to enforce the law, which the legislative department puts upon him as to the mandate of the social force, the first, the legislative department, is the most vital and important in its influence on the liberty and the rights of men, and therefore should be organized by the constitution with great care so as to protect the liberty and right of the man against usurpation and abuse by the governmental power. We shall, therefore, in the next chapter, begin with a consideration of the proper organization and limitations on the powers of the legislative department of government.

§ 60. The legislative department, being that which puts into effect rules upon civil conduct and restraints on individual liberty, its organism and the definition of its powers is of vital importance.¹ The government must have certain legislative powers which are essential to its being.

First. The protection of a people from foreign invasion, the support of its machinery for internal order, and the conduct of its rightful operations require means which must be supplied to it by the members of society. This makes taxation a proper power to be vested in it. The appropriation of the revenue from taxation must be left to the government. These two constitute what may be called its fiscal action. They belong rightfully to the legislative department. The citizen pays his taxes as lawful compensation for the protecting care he derives from the government. He bears the burdens for benefits received. His person and property are secured by government, and he pays the tax for this security.

Second. The rules for personal conduct in the relations of contact and contract between men must be prescribed by law. Men must so use their own liberty as not to trench on the equal liberty of others. Law must enforce this personal duty to insure personal peace and order. This liberty of self-use is by Divine title; it must be secured and only abridged so as to secure the like rights to all.

It has been fully established that government was Divinely ordained to conserve man-right and man-freedom to each and every member of society. The equality of right of each to his own powers and their use, and to the fruits of such use,

is not a gift of society or government to him, but is the inalienable and indefeasible gift of God. No man can jurally take them from him, nor can the government itself, ordained to protect his title to them, divest him of them by any jural authority. For government to protect him in these essential liberties is duty; to take them from him without just recompense is robbery. It must defend his rights against the private robber, and commits public robbery by destroying his right, or by aiding any one to rob another of any of these essential rights. This canon as to personal freedom may therefore be stated: the maximum of liberty must be secured to each man consistently with the peace and order of society.

Third. This enormous power of government must be exerted with just regard to the equal rights of all the members of society. It is trustee for these and must use its power with equal justice to all. It must not help one and hurt another. Its power is granted by all for the equal benefit of all, and when that power so granted is used by government to help one or to hurt another, it is the abuse of the grant by using A's power to hurt himself, or to help B. Power is granted by the man to the government in trust for his own benefit; it is a flagrant breach of the trust to use it to his injury, or to pervert it to the use of another. All that the man can ask (and this he may demand) is that government shall use his power, delegated to it, for the conservation of his man-right. He cannot demand its aid, for that would be to use another's power to help him; but he can demand that government shall not obstruct his free self-use when thereby he injures nobody. Each must work out his own destiny, without help or hindrance from government, and without forcing aid or receiving hindrance from any other member of society.

There are two modes by which government has perverted its powers in the unequal use of them between members of society:

(a) Privilege (priva lex). When government gives help to one which it fails or refuses to give to another, it grants

to one the use of the power of the other to foster the interests of that one, when the power of the other has been delegated to his own use. It diverts from a common store of power, what the other contributed for his own benefit, to that of the one, and denies it to the creator of the power.

(b) Monopoly (mo/noj and pole/w � to sell). When government gives license to one to exercise his right, and denies it to others in the same position, this is monopoly.

Privilege gives government's favor to one which is denied to others. Monopoly allows one to exercise his right, which others are forbidden to exercise. Both are tyranny, for the trustee of power from all, to be used for the equal good of all, confers a favor on one which is denied to others, and destroys the right of one to secure an equality of right with every other. All are entitled to equal protection. Favors to all alike or to none; rights of each secured, with denial to none.

These three classes of legislative powers may cover the whole domain of authority to be entrusted to the legislative department. In order to illustrate these abstract propositions, judicial authority may be adduced. "It may well be doubted," said Chief Justice Marshall, in Fletcher v. Peck,¹ "whether the nature of society and government does not prescribe some limits to the legislative power; and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted; but the question, whether the transferring of the property of an individual to the public be in the nature of the legislative power, is well worthy of serious reflection. It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments." And Chief Justice Chase adds, with great force: "And if the property of an individual cannot be transferred to the public, how much less to another individual?"²

"It violates that fundamental principle of all just legislation, that the legislature shall not take the property of A and give it to B."¹

"No court, for instance," said the late Justice Miller, in Loan Association v. Topeka,² "would hesitate to declare void a statute which should enact ... that the homestead now owned by A should no longer be his, but should henceforth be the property of B.... Of all the powers conferred upon government, that of taxation is most liable to abuse. Given a purpose or object for which taxation may be lawfully used, and the extent of its exercise is in its very nature unlimited." And then follow these weighty words: "To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation."

He then quotes the language of Judge Cooley: "Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes."³

Judge Cooley says:⁴ "Levies for Private Purposes. � Where, however, a tax is avowedly laid for a private purpose, it is illegal and void. The following are illustrations of taxes for private purposes: A tax levied to aid private parties or corporations to establish themselves in business as manufacturers; a tax the proceeds of which are loaned out to individuals who have suffered from a great fire; a tax to supply with provisions and seed such farmers as have lost their crops; a tax to build a dam which, at discretion, is to be devoted to private purposes; a tax to refund moneys to individuals which they have paid to relieve themselves from an impending military draft; and so on. In any one of these

cases the public may be incidentally benefited, but the incidental benefit is only such as the public might receive from the industry and enterprise of individuals in their own affairs, and will not support exactions under the name of taxation."

In Cole v. La Grange,¹ Mr. Justice Gray, speaking for the whole court, said, referring to a number of cases:

"The general grant of legislative power in the Constitution of a State does not enable the legislature, in the exercise either of the right of eminent domain or of the right of taxation, to take private property, without the owner's consent, for any but a public object. Nor can the legislature authorize counties, cities or towns to contract for private objects debts which must be paid by taxes. It cannot, therefore, authorize them to issue bonds to assist merchants or manufacturers, whether natural persons or corporations, in their private business. These limits of the legislative power are now too firmly established by judicial decisions to require extended argument upon the subject."

These citations are sufficient to sustain the views already presented. The important limitations upon legislative power, which restrain it from taking the property of an individual by taxation for any other than a public purpose, or from taking the property for a public use, except upon just compensation, are essential to the private right and liberty of every citizen. If government can be restricted in its action to what is needed for the protection of individual right, and from undertaking to select special interests for its fostering care at the expense of the mass of the people, there will be far less wrong done and the rights of men will be better conserved. The tendency of all systems, from the very nature of selfish man, is for private interests to aspire to get the government into their hands and to use it for their purposes. Private interests struggle for this. Public elections are not merely party struggles, in a mere race between rival candidates for place, they are the struggles

³ Cooley on Constitutional Limitations, 479. See also Northern Liberties v. St. John's Church, 13 Pa. St. 104, per Coulter, J.; also

Allen v. The Inhabitants of Jay, 60 Me. 124; Jenkins v. Anderson, 103 Mass. 74; Lowell v. City of Boston, 111 Mass. 454. ⁴ Constitutional Law, p. 58.

between representatives of interests, which are adherent to the man because he is their man and will do their bidding, He is their racer, upon whose success great stakes depend; his success is theirs.

The fiscal action of government, in its nature, cannot be equal. Some pay more into the treasury than they ever get out; others get out more than they put in. Hence the division of society into two classes � tax-payers and tax-consumers. The first are interested to lessen taxation, because it is a burden with no equivalent benefit. The second are interested to increase taxation, because it increases the benefit of large disbursements to them without equivalent burden. Therefore, the toiling masses are made to pay taxes on which the official few, and their parasites and banded interests, feed and fatten. The best government is not that which exacts large taxes and makes great expenditures, but the reverse. Light taxes and economy are cardinal objects of all good government. It is better to leave in the hands of the individual what would stimulate his private enterprise than to take it from him to pamper the parasites of the treasury. The contrary system may build palaces for rank, but will make squalid hovels for the poor.

§ 61. The two rival theories of government may therefore be described as follows: The polity of individualism and the polity of paternalism.

In the ancient world the system of paternalism was most prevalent, and, as a late writer has very strongly said, "the Hellenic State, like the ancient State in general, because it was considered all-powerful, actually possessed too much power. It was all in all. The citizen was nothing, except as a member of the State. His whole existence depended on and was subject to the State.... The independence of the family, home-life, education, even conjugal fidelity, were in no way secure from State interference; still less, of course, the private property of the citizens. The State meddled in everything, and knew neither moral nor legal limits

to its power. It disposed of the bodies, and even of the talents, of its members."¹

The ideal republic of Plato was a system under which all individualism was merged in the State, and everything was regulated by it, as the parent of its citizens; and while he clearly held the governor should not consider his own good, but only the good of the government for whom he was steward,² yet he held that the State was created so that all might be happy to the fullest extent by the State giving happiness to everyone.

The history of this system of political thought repeated itself about two centuries ago in the Patriarcha of Sir Robert Filmer, the champion of the House of Stuart. In this work he maintained that, by derivative title from God through Adam, there had been transferred to the king the original patria potestas of the family, and that to this royal patriarcha absolute obedience was due by all, and to him were confided the care and training of his children � the men and women of the Nation. This was the patriarcha of the Stuarts, which had its first condemnation on the scaffold where Charles I. was beheaded, and in the abdication of the last of the Stuarts in 1688.

The paternal government, the patriarcha, is based on falsehood and is a political fraud. It takes the paternal name to sanction its absolute authority, but discards the paternal duty in administering government. A father in name, it is without his natural love to mitigate tyranny, or to do equal justice among its people. It claims unlimited power to dispense blessings or cursings at its will. It has petted parasites attached to itself, because they feed upon it, and it draws the resources with which to supply them from the disinherited mass of its children, whom it exhausts, but never helps. It has its foster children and its foundlings � its favorites and its victims � and burdens many for the benefit of the few.

But this monarchical patriarcha was a blessing compared with the paternalistic democracy. The former would have a favored few in its family, but the democratic patriarcha must, in order to retain its power, band the multitude in its support by profuse and extravagant largess. In a monarchy, those bounty-fed adherents for the price of their loyalty will be few, compared to the multitude whom no man can number, who will clamor for extravagance in expenditure as the reward for the support of the party which bids most for their favor.

When government advertises itself as the munificent almoner of indefinite charities, as the machine through whoso grind benefits may be conferred on some at the expense of all, and enterprises be fostered or destroyed at will, contestants for the prize of its power will spread their nets to catch the most powerful and combine the most influential, until extravagance, plunder and corruption will fill the land. Elections, being the game for great stakes, will be controlled by political gamblers; money, not morality, will rule its results; and the democratic patriarcha will become the paternal plutocrat of the country.

But this is not all. As soon as paternalism holds itself ready to help its children out of the common fund, furnished by the taxation of all, every one will demand what another receives. They will argue, if one enterprise is aided by gift or loan, why not all? Equality is equity. If the government may lend to C without security, why not to others on mortgage? If one producer receives bounty to raise his crop, why not all? If one is relieved of loss from fire or flood, why not all? Is not the government the impartial father of all its children? If it directly or indirectly helps one to make a billion out of the many, why not, in turn, help the many to distribute their excess? If it can give plethora of wealth to monopoly, why not aid the commune by healthful depletion, in order to return ill-gotten gains to the victims of privilege?

communism are twin monsters from the womb of the patriarcha of Filmer, the paternalism of to-day. Privilege sows the wind; the commune will bring the harvest of the whirlwind! The feast of fat things once open to the hungry, the doors will not be easily shut upon their claims. Precedents become customs, and customs the settled law; and privilege and monopoly, once established, will claim their own perpetuity as a vested right. In any form of government where the paternalistic idea takes root, the danger of over-action will always exist. If it be a monarchy, in the language of John Milton, "the very trappings of a monarchy are more than sufficient to defray the expenses of a republic." If in a republic, the stupendous taxation and expenditure of our federal, state and municipal governments will show that the mere democratic form of government will not save a country from the disasters of this perilous principle.

Mr. Spencer, in his "Justice,"¹ says: "In France bureaucratic despotism under the Republic is as great as it was under the Empire. Exactions and compulsions are no less numerous and peremptory, and, as was declared by English trade-union delegates to a congress in Paris, the invasion of citizens' liberties in France goes to an extent which 'is a disgrace to, and an anomaly in, a Republican nation.' Similarly in the United States. Universal suffrage does not prevent the corruptions of municipal governments, which impose heavy local taxes and do very inefficient work."

In 1890 the revenue of the Federal Government was about four hundred millions; of the States, from ad valorem taxation, about sixty-eight millions; of counties, about ninety-three millions; and of municipalities, about three hundred and four millions; or nearly nine hundred millions for all purposes, or about $14 per head.

These considerations show the importance of this cardinal canon of political science: Limit law-making to the defense of man-right, and of his self-use for self-development, without aid or hindrance from government. When it passes this

limit and becomes paternal, the patriarcha will burden all for the privilege of the few, and give monopoly to the few to the exclusion of the mass. It will build up the plutocracy of the few by the side of the pauperism of the mass. In the philosophic statement of a late able writer, "the beneficent Jeffersonian philosophy prefers that nothing shall be done by the general government which the local authorities are competent to do; and nothing by any governmental power which individuals can do for themselves."^l

The supreme importance of constitution-making in the organization of the legislative department, with its enormous power for good and evil, invests this problem with an importance momentous to the liberty and rights of men. The greed of power, innate in the human heart, is the peril in all systems to the rights and liberties of the people. To win this great prize, there will be fierce competition that its energies may be diverted from the happiness of the mass to the benefit of the few, or to the glory and ambition of one man. The struggles in modern times from municipal control is illustrative of the first proposition, as the imperial ambition of a Napoleon is a sample of the last. The peril to liberty exists in all forms of government; perhaps more in a democratic, because the people, relying upon the form of authority, are less vigilant to watch the abuse of power by their governmental agents than where power is hereditary, and not dependent upon the popular will.

organization of the legislative department of government? By what form of organism and on what basis can they be prevented? Can we put a hook into the nose of this leviathan,² or make a covenant with him and make him a servant forever?³ To what hands will you confide the purse and the sword? To whom can you intrust the wielding of these tremendous social forces before which the single man will be impotent? Where can you find safety for lib-

erty, when power, possessed of the national purse and with its hired myrmidons, clad in steel and weapons of war, shall array itself against the unarmed citizen in his humble home. Your government, executive, legislative, judicial, must at last be in human hands, and be directed by human hearts, with all the sinful propensities of selfishness to prompt its motives, direct its policy and to impel its power. You make them your guardian � but quis custodiet custodes? This is your problem. How will it be solved?

A comprehensive answer can readily be given. Wed power to right, and liberty is safe and despotism is impossible. Divorce them � liberty dies and despotism is assured. Let the hand which holds the right hold also the sceptre of power, and right cannot die but by suicide; for power strikes self when it strikes right. On the contrary, put power in the hands alien to right, and right will be sacrificed. If the man whose rights are to be affected wields the power of government; if the hand which pays the tax be the hand which lays it; if the man who is to be subject to laws be the maker of them, all will be well. In the language of a great writer: "Contrasts between the states of different nations, and between the states of the same nation at different periods, have strongly impressed men with the general truth that if governmental power is in the hands of one, or in the hands of a few, it will be used to the advantage of the one or the few; and that the many will be correspondingly disadvantagod. That is to say, those who have not the power will be subject to greater restraints and burdens than those who have the power � will be defrauded of that liberty of each, limited only by the like liberties of all, which equity demands � will have their rights more or less seriously infringed."¹

§ 62. In the ancient world, power, with absolute irresponsibility to the popular will, was in the hands of hereditary monarchs, or class aristocracies. This made tyranny inevitable, for power was not wedded to right, but was divorced

from it. If there ever happened to be good government, it was from the grace of the person who held power, but could not be compelled. The leviathan was without a hook in the hands of the people. The rude democratic policies of Greece were in fact aristocracies � that is, power was in the hands of a class, while its subjects had no voice. The plh~qoj politw~n of Aristotle were really the few who governed the mass. It was an aristocracy. For example: in Athens, the po/lij of Attica � the e\kklhsi/a � the plh~qoj politw~n � was composed of citizens and was the body to which magistrates were responsible. In Attica it is probable there were 350,000 people, at least. Of these it is said 30,000 were citizens, � the

rest were not citizens, and many were slaves. Not one-half of the men of Attica, therefore, were citizens. The number who were present in the e\kklhsi/a was never more than 4,000 � that is, only one-seventh of the plh~qoj politw~n of Attica, and about one-twentieth of the adult males. This was not the people, but a class and a very small class of the people, and usually composed of the residents of the city, to which the agricultural population of Attica were rarely, if ever, admitted.

But what an assembly for any kind of deliberation! In the language of Mr. Madison,¹ "If every citizen of the e\kklhsi/a had been a Socrates, still the assembly would have been a mob." It is further obvious, that the personal holding of power by the people would be impracticable for any but a very small state. The ancient states were centered about a po/lij (a city), and the power of the whole was inevitably exercised by this po/lij. The mass of the people in Attica, as we have seen, had no part in the government. Much more so would it be in the great Roman Republic when it was assuming imperial dimensions.

Some other arrangement, therefore, than a populous assembly, will be needed for a populous country. For example, how could the 14,000,000 of voters in the United States assemble for legislative deliberation in one e\kklhsi/a?

Prof. John Fiske, of Harvard, in his "Beginnings of New England," has finely stated the distinction between the diverse methods of nation-making in oriental countries, in the Roman Empire and in Great Britain. "The oriental method is conquest without incorporation; the Roman, conquest with incorporation, but without representation; the English, conquest by incorporation with representation."

Representation is the modern method by which the will of a great multitude may express itself through an elected body of men for deliberation in law-making. It is the only practicable way by which a large country can give expression to its will in deliberate legislation. Give suffrage to the people, let law-making be in the hands of their representatives, and make the representatives responsible at short periods to the popular judgment, and the rights of men will be safe, for they will select only such as will protect their rights, and dismiss those who, upon trial, will not. True representation is a security against wrong and abuse in law-making.

We come now to make an important distinction between civil right and political power. Mr. Spencer, in a part of the passage already quoted, adverts to this distinction with great force. "Those shares of political power which in the more advanced nations citizens have come to possess, and which experience has shown to be good guaranties for the

maintenance of life, liberty and property, are spoken of as though the claims to them were of the same nature as the claims to life, liberty and property themselves. Yet there is no kinship between the two. The giving of a vote, considered in itself, in no way furthers the voter's life, as does the exercise of those various liberties we properly call rights. All we can say is that the possession of the franchise by each citizen gives the citizens in general the power of checking trespasses upon their rights: a power which they may or may not use to good purpose."^l

a people can safely enjoy consistently with peace and order differs in different nations according to their moral fitness for self-government; those being entitled to enjoy larger liberty where the civil power is not needed to control them, because of their moral self-control; and those nations which require the large use of civil power to maintain order, because of their lack of moral self-control, cannot be equally free without danger to social order.¹

The same qualification which is thus made of the right of diverse peoples to freedom must a fortiori be applicable to the exercise of political power by such people. If the external civil power must limit the liberty of a savage to conserve social order, for a stronger reason the constitution of a people should abridge the power of such a savage in the exercise of political functions. If he cannot control himself, and therefore must be controlled by others, why should he have equal power to govern the state with those who have perfect power of self-control? It may be safe to give suffrage to a perfectly moral man, when it would be wholly wrong to give it to a savage in ignorance or a savage in brutality.

The equality of right, which has been insisted upon between all the members of society, to that which to them is the gift of God, is not at all infringed by denying to those who have such equality of right an equality of power in conducting public affairs. Wo may not take away his right, and yet we may deny him the power. We cannot divest him of what he has by Divine title, but we may refuse to him the exercise of a political function for which he is either unfit by lack of intelligence, or by reason of having no sufficient interest in the thing which his act will control. Civil rights must be conserved with scrupulous fidelity. Political power can only be safely conferred upon those who have intelligence to act wisely and an interest to act honestly.

§ 63. Right of suffrage is a misnomer. Suffrage is a power which should only be exercised where there is fitness for ¹ Ante, § 53.

it. Who shall exercise suffrage � who shall constitute the plh~qoj politw~n of the de facto Body-politic � is a fundamental question which the Body-politic must decide upon a just view of the true relation between the power of the suffragans and the rights of the whole people. Each man may claim power to govern himself, and therefore that he is entitled to suffrage, but the answer to this claim is: first, can he govern himself wisely and well; and second, has he the intelligence and the honesty to govern others as well as himself. His power over himself and others, exercised through suffrage, is therefore a matter that cannot depend upon his volition only, but upon that of the others, whom, by his suffrage, he controls as well as himself. Who shall have man-right is a question settled by the Divine title; but who shall have political power over himself and others must be a matter of agreement and convention.¹ The question is, whether the man is fitted by intelligence to perform the function, for if not fitted, he cannot claim to have the right to do it; the second, has he such interests in the matters controlled through his suffrage as to check the misuse of power which self-interest always prompts? If he lacks intelligence, it is the greatest absurdity to give him suffrage and the greatest wrong to the community. If he lacks community of interest in the laws which are to govern the community, it is not only a serious danger but a false principle to give it to him, for thus you give power to the hand which is alien to the right of others which it controls. Right and its power of self-defense should co-exist, unless its power through ignorance or want of interest would be impotent for self-defense and potent for self-destruction and the ruin of society.

Hence, representation and taxation have always been correlated as power and right. The hand that lays should pay the tax, and vice versa; else tax-layer will plunder tax-payer. The laying and paying must go together in order to the protection of the right of property. This is liberty. To divorce

¹ Burke's "Reflections on the Revolution in France." 1 Burke's Works, pp. 481-82.

the two would result in the destruction of the right of property. This is tyranny.

These general views on the subject of suffrage are formulated in the sixth section of the Virginia Declaration of Rights, June 12, 1776:

"VI. That all elections ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses, without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good."

"Every male person being twenty-one years of age, and resident in any particular town in this commonwealth, for the space of one year next preceding, having a freehold estate within the same town, of the annual income of three pounds, or any estate of the value of sixty pounds, shall have a right to vote in the choice of a representative or representatives for the said town."

Like qualifying restrictions of suffrage existed not only under the English system, but in every state of the Union at the time and subsequent to the Revolution, and even at the present time, though the restrictions have been very much removed, and the extent of suffrage become well-nigh universal; but these instances show that American political science recognized the legitimacy of qualification upon the universality of suffrage.

Let suffrage, then, be conferred upon all whose intelligence and community of interest in the affairs of the state are sufficient to ensure that they will wisely and honestly perform this important function, and make them a true representative of the real Body-politic in the election of the law-making department. The more liberal the rule of suffrage, conserving the essentials of reason and honesty,

the better. To restrict suffrage further than this is to create a class oligarchy, and not a true popular constituency. Under such conditions, representatives elected for a limited time would make the legislative body an approximate representation of the people's will. Infidelity to the public will by a representative would be followed by dismissal from service, and the fear of this would reasonably ensure fidelity to delegated duty.

§ 64. But will this simple method solve the problem in hand? Will it make a true representation of the people's will? It will be observed that it only secures the fidelity of the delegated agent to those who elect him, and who may re-elect or dismiss him. Where social interests are homogeneous, and there are no antagonisms or rivalry among the people composing the society, the simple method suggested will bring together men entirely at one in interest and purpose, whose only dissension would be in their several judgments as to the best plan for the conduct of the government. No one's action would be aimed at the injury of any class in society, because injury to such class would be alike injurious to all. No representative could strike a blow at the constituency of another without inflicting it upon his own. Evil laws might be made, but these would result from error in judgment, and not from an evil motive, if any, because a law injurious to one would be alike injurious to all.

It follows that as soon as the interests of society are homogeneous, the simple representative principle, if equal, would secure all parts of society from the results of sinister motives and unjust action, though they might be liable to injury from error in judgment as to the true policy for all.

But when society is composed of heterogeneous classes commingled in the same locality, or in different localities; when the interests to be affected by law-making are not alike, but are rivals and antagonistic � the one seeking for some advantage at the expense of the other, contention will arise among constituencies, and will be transferred at

their instance, through their respective representatives, to the halls of legislation. The debate between conferees as to the regulation of a common interest would become a fierce war between hostile interests. The representative, in good faith to his constituency, would strive to make laws in their interest, and the laws would be moulded by the motives of the constituencies for the benefit coveted, if their representatives constituted a majority, at the expense and to the

injury of those constituencies whose representatives constituted only the minority in the body � powerless to defeat, and only able helplessly to protest. The resistless majority would crush the impotent minority. The interest of the minority would have no true representation, because its representatives would be overborne by the dominant majority. The hand of the majority, which would wield absolute power, is not the hand of the minority, which holds its right, but the hand of an alien enemy to that right. Power and right are thus divorced, not wedded, and the representative majority would destroy without mercy the unrepresented minority. In such a state of society, the form of representation is no shield for the rights of the minority, but a sword of power for their ruin.

It is hardly necessary to cite examples of this conflict of antagonistic interests in the history of our race. Many such will be fully explained hereafter, but for the present, to meet the natural inquiry which will arise in the mind of the reader, a reference to some striking instances may be made.

Every absolute monarchy, every oligarchy, every aristocracy in history has been the alien hand which has destroyed the rights subject to their authority and which had no adequate representation in the government to obstruct its action. The Plebs in Rome were dominated by the majority power of the patricians. The American Colonies had, and could have, no substantial representation in Parliament, and independence was the only door for their escape from an alien tyranny. The contest to-day of Ireland for Home

Rule is based on the fact, not that it has no representation in Parliament, but that, under the specious veil of representation, it and its destiny is dominated by the British majority, against which it can only enter its solemn but impotent protest. In all cases where power is in the hands of any class or interest which is antagonistic to others, whether the

others have a minority representation or none, the result is tyranny. History is full of this truth, speaking by numberless examples.

§ 65. How, then, is this most difficult problem in political science to be solved? Representation protects constituencies from false representatives; but how shall we protect the minority constituency from a majority constituency, which, acting in legislative body, are represented in proportion to their numbers? Our representative principle may save the majority from the domination of the few, but how shall wo save a minority from the tyranny of a majority? Two devices may be suggested:

First, in the machinery of the government, give to each class or order a separate and distinct organism through which its will may be voiced, and require a concurrence of each to all action. Thus each will check the hostile action of the others, and all must concur in order to any action.

Mr. Burke, in his "Reflections on the Revolution in France," has stated this principle with great strength and beauty. Addressing himself to the French mind, he says:

"In your old states you possessed that variety of parts corresponding with the various descriptions of which your community was happily composed; you had all that combination, and all that opposition of interests; you had that action and counteraction which, in the natural and in the political world, from the reciprocal struggle of discordant powers, draws out the harmony of the universe. These opposed and conflicting interests, which you consider as so great a blemish in your old and in our present constitution, interpose a salutary check to all precipitate resolutions.

They render deliberation a matter not of choice, but of necessity; they make all change a subject of compromise, which naturally begets moderation; they produce temperaments, preventing the sore evil of harsh, crude, unqualified reformations, and rendering all the headlong exertions of arbitrary power, in the few or in the many, forever impracticable. Through that diversity of members and interests, general liberty had as many securities as there were separate views in the several orders; whilst, by pressing down the whole by the weight of a real monarchy, the separate parts would have been prevented from warping and starting from their allotted places."¹

This device is often called "the checks and balances in government," or by Mr. Calhoun, in his acute analysis of the science of government, in his Disquisition on Government, "A Government of Concurrent Majorities."² The substance of his view is this: So organize your government that each interest shall act independently of the other, and instead of allowing that one which has a preponderance of numbers to govern that which has the minority, require a majority of each to concur in the political measures proposed, and thus give to neither any power over the other, but by that other's consent; and allow no action in either unless both concur in the consent. Power and right are thus wedded

Government under this device represents each and every interest. It voices, not a numerical majority of the whole, but the concurrent majority of each and all its members. Each is thus potential for his own defense against others, but impotent for offense to others. It prevents injustice to any and enforces justice to all. Out of the conflict of these distinct orders liberty emerges and is secured. In their uni-

² 1 Calhoun's Works, pp. 24-29. John Stuart Mill, speaking of Calhoun's posthumous work, and of its author, says he was "a man who

has displayed powers as a speculative political thinker superior to any who has appeared in American polities since the authors of 'The Federalist.'"

fication under mere numerical majority, liberty dies, and tyranny is inevitable.

Second. The second device which may be adopted is this. Let any peculiar and distinct interest be regulated and controlled exclusively by that order or class in society which holds it � by them alone � excluding other heterogeneous elements entirely from any vote in respect to them � and letting all regulate homogeneous interests together in one government. Under this each order of society, under a separate governmental organism, would regulate its own distinct interests with which other orders, having nothing in common, would have nothing to do in the way of regulating them.

§ 66. The mode in which these two devices have been applied in the history of the race will be now explained, and but for these two devices, which have saved liberty in all the ages, political history would be a dreary rehearsal of unbridled despotism as the destroyer of man-right. In illustration of these two devices some striking examples may be cited:

(a) In the first stages of the Republic of Rome, in the comitia centuriata, where suffrage was based on property, patricians and plebeians were admitted to its deliberations, but the patricians had a majority, and the oppression of the plebeian minority gave rise to the celebrated secession of the Plebs to the sacred hill, as their only protection from the government, which had become an exclusive aristocracy. The patricians used every means to persuade them to return. A treaty was made between them as between two distinct nations and resulted in the establishment of the office of Tribunes, who were the representatives of the plebeians alone, by the plebeians, with the power of veto upon the action of the patricians. This tribunitian power, which was exclusively in the hands of the plebeians, was a check upon patrician power, and was maintained throughout all the subsequent history of the Roman Republic. In other words, no law or act could be passed to the detriment of the plebeians to which their concurrent majority did not consent; and, on the contrary,

the plebeians could exercise no power against the patricians without the concurrence of the patricians. Rude and imperfect as this device was, it was effectual in the protection of each order from the oppressive action of the other. The doctrine of concurrent majorities saved the liberty of the members of each order from destruction by the other.¹

(b) In the history of the English Revolution, a great contest arose during the reign of the Stuarts as to the power of the king to take a subject's property without his consent, expressed through a vote of the House of Commons. Taxation had previously been held by the people of England to be unlawful, unless with the popular assent in the House of Commons. If the king could tax the people without the assent of the House of Commons, power would have been alien to right. The great case of the ship-money exacted by the king of John Hampden in 1636, decided against him by a venal judiciary, for the time divorced the power of taxation from the right of the tax-payer. English freemen did not tamely submit. The Revolution was the result, and resulted in the Constitutional Monarchy of 1688-89, by which the power of taxation was secured to those who paid the tax. This wedded power to right, which the House of Stuart had attempted to divorce.

(c) The American Revolution of 1776 turned upon the same pivotal issue. Parliament had in a preamble asserted the right of taxation of the Colonies by the Parliament of England, in which the Colonies were not represented at all, and in which, if they had been represented in proportion to their numbers, the representation would have been a mockery, because their representation would have been a minority only, subject to be overborne by the majority of English representatives. This called forth the splendid eloquence of Edmund Burke in his speech on "American Taxation," in which he used this language:

"Could anything be a subject of more just alarm to America than to see you go out of the plain high road of finance,

and give up your most certain revenues and your clearest interest, merely for the sake of insulting your colonies? No man ever doubted that the commodity of tea could bear an imposition of three pence. But no commodity will bear three pence, or will bear a penny, when the general feelings of men are irritated, and two millions of people are resolved not to pay. The feelings of the colonies were formerly the feelings of Great Britain. Theirs were formerly the feelings of Mr. Hampden when called upon for the payment of twenty shillings. Would twenty shillings have ruined Mr. Hampden's fortune? No! but the payment of half twenty shillings, on the principle it was demanded, would have made him a slave. It is the weight of that preamble, of which you are so fond, and not the weight of the duty, that the Americans are unable and unwilling to bear."^l

A statement of the grounds of this revolutionary conflict will not be out of place. Each Colony had substantially conceded that Parliament might properly legislate for the general welfare of the empire of which each was a part. The Colony did not even make a point of its representation in the Parliament, as to matters which concerned the whole empire. As to these, it was content that as the welfare of all was the interest of all, the power might safely be vested in the general council, acting for the general welfare of all and the common defense of each and every part.

But when the local interests of each Colony, when its internal policy, its home rights were to be regulated, its people felt that these interests and rights, and this internal polity, could only be safe when under the exclusive control of the political power which represented the people of the Colony, who held these interests and rights and were concerned in this polity. This was self-government. The admission of any other influence was to allow their rights to be controlled by aliens. This exclusive power was wedded to the personal right. If any alien to the right was to participate, it pro tanto divorced political power from personal right, destroyed

real self-government, and subjected personal and home right to the influence and government of real aliens.

In vain did British sophistry plead that the English voter was a fellow subject of the Colonist, and not an alien. The Colonists replied, 'quoad hoc: as to my home interest, my home right, my internal polity, you know nothing and care less; your interest is not mine; nay, may be antagonistic to mine; and to allow you an equal voice with me, or worse, a major voice to mine in your Parliament, would be to give up my personal liberty to the control of real aliens, and make my condition one of servitude to your mastery.'

And hence, when some suggested colonial representation in Parliament, the fathers answered that it was a delusion and a snare to subject internal polity to a Parliament of 500 members, in which the Colonies would have 50 and England 450 votes! The hands which wield the power must be the hands that hold the interest; home rule is essential to home liberty, and the safety of home rights, and the integrity of home polity! The home rule they needed was a real, not a formal, representation; an absolute authority and not a barren sceptre.

In the case of the Colonies the evil of domination was aggravated by its sectional character; Great Britain, the

regulated. The worst form in which this alien government can be presented is when the rights and interests are in. diverse localities, separated by a geographical line, and the

growth of social conditions in the section separated by that line. Sectional tyranny is unmitigated by presence and sympathy. Class over class may be so mitigated. In the one case, the oppressor never hoars and hence never heeds the

government, but it usually defers. Government by a foreign people neither understands nor defers; it has no adaptation to the wants or temper of the governed. It is, therefore, about the worst government that can be imagined."¹

The government of a localized minority by a localized majority is in substance the government of one people by another people � by a foreign people. The alien hand of power governs the distant right without sympathy, and unalleviated by the presence of its victims. Alien tyranny is not only an intolerable foe to human liberty, but the destroyer of human happiness. The sectional majority is an alien despot.

(d) In Great Britain, where hereditary power is vested in the King and the Lords, and popular power in the House of Commons, the first device is brought into use for the protection of each against the hostile action of the others. Hereditary title to power would not stand a day against the hostile action of the popular body. This is evident from the present condition of things in England, whore the question of abolishing the House of Lords, or diminishing their authority and power, is prevented by the fact that any such change in the constitution of the House of Lords would require its concurrence. On the other hand, the danger to popular power from the adverse action of the hereditary class is avoided by the concurrence of the House of Commons being necessary to any such change, and if both the Lords and Commons should seek to abridge the prerogatives of the Crown, the monarch is vested with the veto upon any action of these two bodies, so that no legislation can be carried out without the concurrence of King, Lords and Commons � the three estates of the realm.

(e) In the Federal system of our Union both of these devices are finely illustrated. In the construction of the legislative department of the Federal government, we have a bi-cameral Congress, composed of the Senate and House of Representatives. The Senate is composed of two senators from each state without regard to population. The House of Representatives is composed of members elected by the voters of each state, in the main in proportion to numbers. The Senate represents the equipollency of states; the House mainly the power of states according to numbers.

If the numerical majority of the whole country in the House of Representatives should seek to invade the statehood of the members of the Union, it could only be done by the concurrence of a majority of states in the Senate. On the other hand, if the states should attempt to invade the rights of the populations of the country, it could not be done but with the concurrence of the House which represents the populations. The concurrent majority of the two Houses is thus essential to all legislation.

But lest this concurrence should be brought about to the injury of any interest or right of the people, the veto power in a qualified form is vested in the President, who is elected on a basis which combines both the equality of the states and numbers in each of the states. His veto may be overcome by a two-thirds vote in each of the Houses concurring. Thus all legislation is dependent upon the concurrence of the

majorities of population, of states, and of population and states combined in the election of the President.

And if this three-fold concurrence were obtained in any legislation which violated the Constitution of the United States, the judicial power is armed with authority to declare such legislation in effect to be null and void. So that in order to any legislation having full effect under our Federal system, it must have the concurrent sanction of the two Houses of Congress, of the President and of the judiciary. The legislative power of the Federal government is, however, by the terms of the Constitution, limited to such matters as are delegated to it by the Constitution, and all legislative power not so delegated is reserved to the states. If, therefore, the legislative department of the general government should undertake to exercise the function of law-making upon any subject thus reserved to the states, such action would be wholly null and void and would be so declared and enforced by the judicial power of the United States.

The respective states, as to their reserved legislative power, have vested this power in bi-cameral legislatures, without whose concurrence no law can be passed, and very often

with a grant of a veto power to the governor. And, in the state systems of government, the same power in their judiciary to declare void any legislation which is contrary to the state constitution is fully recognized; so that no state law can be effectual which has not the concurrent sanction of both houses of the legislature, the governor and the judiciary.

It will be seen that in this Federal system, embracing the Federal government and the various state governments, the device of the concurrent majorities is in full force, and the second device is brought into operation by leaving to each state, without any interference in its legislation by any other state, the exclusive law-making power as to all interests which exclusively belong to that state.

This wonderful combination of these two devices presents an example in which the guards to the personal rights and liberties of the people are better defined and more effectual than under any system of government known among men. The full explanation of the principles of this system will be reserved for future consideration.

How majestic is this essential unity of the people's will and purpose through diverse and independent agencies for their expression! How true a unity is obtained by not taking the will of the whole without reference to the parts, but the will of each distinct part in order to attain the will of the whole! How superior this to a government based on the majority of numbers! The government of the numerical majority is the mechanism of brute force: ours is the resultant of the moral forces of intelligent popular will over brutal selfishness.

It will be perceived that this is the security by dividing power and distributing it between agencies independent in will and action. So that no one person is permitted to wield power in more than one of the three great departments of government, or in more than one of the bodies constituting such department. This maxim for the division of the department of government into three departments, whose functions are to

be performed by distinct and independent agents, no one of whom shall be allowed to act in any other, is fatal to the designs of any one department against right and liberty, because such department is powerless unless it can combine all the others in its purpose of usurpation.

"When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty; because apprehension may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

"Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

"There would be an end of everything were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."¹ This principle will be explained more fully hereafter. A mere reference will for the present be enough.

(f) There is a practical difficulty in applying the second device to cases where diverse and antagonistic interests are commingled in the same society. How to distribute power between the individuals in the same community so as to apply the first device is quite difficult, but the application of the second device, where one class of a community, with a distinct interest from other classes, shall have the exclusive power of regulating its own, has been always an almost insuperable difficulty.

It was attempted in Rome when the plebeians, after the secession, were empowered to pass the plebiscita in the comitia tributa on the motion of one of the plebeian tribunes. These

resolutions so passed by the plebeians alone originally, were laws only binding on the plebeians, until a later date when they were made to bind the whole people, which innovation resulted in the evil, to which we have already adverted, of the one class legislating for all; so that the plebeians, who secured this power for their own defense against the patricians, converted it into a means of dominating the patricians by the plebeian power.¹

But the application of this second device, where distinct interests are localized, and in different sections of the country where they exist, is more easy, and exists in other countries as well as our own. Thus, when the Roman Republic, by conquest, added other countries to its domination, the great Republic left to the municipium � the central city of the conquered province � the regulation of its local affairs, while assuming to govern it by laws regulating the general policy of the Republic. But these municipia became the nuclei of the independent action which saved liberty from the destruction of the centralized despotism. As we have seen, the application of this principle to the states of our Union has been eminently successful and salutary.

§ 67. The origin of this principle was in the Teutonic institutions of vicus, pagus and civitas, where the units of power in the small localities preserved their independent action against the unified action of the state. These Teutonic institutions are well described by a late German writer:

"Montesquieu said very truly, that the germs of parliamentary constitutions are to be found in the forests of Germany. In the primitive forms described by Tacitus, in which the Teutonic kings co-operated with the local princes and other chiefs on the one side, and with the great community of freemen on the other, we recognize clearly the rude beginnings of the free representative government which later centuries produced.

"The Teuton does not derive law, at least not directly, from the will of the nation: he claims for himself an inborn

right which the State must protect, but which it does not create, and for which he is ready to fight against the whole world, even against the authority of his own government. He rejects strenuously the old idea that the State is all in all. The whole relation is reversed. To the Teuton individual freedom is the supreme thing. He is induced to sacrifice a part of it to the State in order to keep the rest all the more securely.... A further consequence for Public Law is that the Teutons in general admit no absolute power of the State, even in matters affecting the community. The Roman conception of imperium, is foreign to them. Before obeying they wish to deliberate and vote. Their estates (St�nde) are a political power with which that of the king must be united in order to make laws. Yet the idea of the State as a collective person is still, as a rule, unintelligible to them. They tend rather to break up the State into actual persons or groups of persons. They understand it primarily as embodied in the king or other princes, who are at the head of the courts of justice, and of the assembly of the people, in the chief of the hundred (Gau) the tithing (Zent) and

the township (Volksgemeinde). One set of persons sometimes strengthens and sometimes limits another; thus the whole organization of the community, even in its parts, is filled with the spirit of freedom. Unity is relatively weak, but the independence of the parts is strong."¹

These Teutonic institutions were transported from the forests of Germany with our Saxon ancestors, and came to be the shires, hundreds and townships of the Anglo-Saxon polity. And these again have been transferred to America, so that in New England the township is the political unit to this day, and the townships or shires, or counties, in all the other states of the Union. Each of these distinct political units has its political power of regulating its local affairs, without interference by other like units, and practically in a large degree without interference by the central power of the state. It is only necessary to add, that in

modern times more largely than in the middle ages, municipal government for cities and towns under charters, which secure to them exclusive legislative power for their local populations, is a distinctive feature of English and American society. These charters for cities and towns were in some cases guaranteed by Magna Carta, and the free cities of continental Europe have been pointed out as the nuclei of individual liberty against the despotism of the Continent.¹

To illustrate by a simple example the application of these two devices: Take two sections of country, A and B. By analyzing their condition, we find, first, that A has some rights in which B has no community; second, B has some rights in which A has no community; third, A and B have some rights in common. A and B are united in the same society. What system of government is best? As to the first and second classes of rights, let the second device apply, and A have confided to it exclusive control of its exclusive rights; the same in the case of B. And as to those rights which are common to both A and B, let A and B unite in counsel, A having control of one branch of the legislature and B of the other. This will be the application of the first device. Under this arrangement the exclusive rights of each will be under its exclusive control. Power and right will be wedded. As to the common rights, power and right will be wedded, because neither A nor B can do anything against the right of the other without the concurrence of the two departments which they respectively control.

This example is strictly analogous to our Federal system. In the Union all the states have some common interests. No one state should have control over these, for the power of the others in these common interests would be excluded and thus right be divorced from power. But each of the states have separate and exclusive interests. All should not unite to control these, for, to the extent that others than the state itself were so admitted to control, power would be alien

to right, and thus power and right would not be wedded. All must unite to control the interests of all; each must control the exclusive right of each. If all manage each, or any one manages all, power and right would be divorced.

§ 68. This discussion conducts us to the conclusion that in the construction of the Legislative Department the following rules should be observed:

First. Limit the powers of all governments to such laws only as conserve each man's right and liberty, and deny all power to create privilege or monopoly, or anything tending thereto.

Third. Keep the three departments � executive, legislative and judicial � in separate and distinct hands, so that no one exercising the functions of either shall exercise those of any other; especially keep those who exercise the functions of legislation from exercising the functions of either of the other departments.

Fourth. In the subdivision of the state into counties, cities, and the like, confer on the people of the locality the power to regulate their local interests, thus decentralizing these localities from the general power of all which regulates common interests.

Fifth. Prescribe bounds to legislative discretion either by limiting power to those which are delegated in terms or by such prohibitions as will secure the liberty of the man against all pretext for bad laws by the usurpation of power.

§ 69. It would be very interesting and instructive to trace the history of human institutions and of their development in the diverse forms of government which have prevailed in the various countries of the world, and thus to gather from the experiences of nations lessons for our own future, and canons in political science based upon a larger generalization from the particular cases as we would find them in human history. To do this fully would be impracticable, for, despite the results of research, we know but little comparatively of the machinery of ancient systems of government, and would not be able, therefore, to deduce accurate conclusions from our imperfect information.

In the work that we have in hand, we must be content to examine that system of institutions which stands most closely related to our own; to trace it to its origin; follow the historic processes through which it has assumed its present forms and functions, and to ascertain how far the seeds of its own polity have produced fruit in our own system of constitutional government. Even in this circumscribed area of investigation, we must consult brevity by condensing the historic facts, and eliminating from the mass of material which recent scientific research affords those which throw light upon the practical questions of our Constitutional Jurisprudence.

The fact of a common genesis of the different nations of the world has been reached by modern archaeology, by detecting in the identity of the roots, and sometimes in the identity of the words of different languages, the common origin. Without pretending to go into these interesting questions at all, it may be stated that by this process of inves-

tigation it may be assumed as established that the Aryan language was the original tongue from which, as a parent, the Sanscrit of northern India, the Iranian or Persian, the Greek, the Italic, the Celtic, the Slavonic and the Teutonic are the undoubted offspring.¹

Prof. Whitney calls this the "Indo-European language," and it has been called Aryan because of the place of its Asiatic origin. It is held to be established that this common Indo-European tongue was once spoken by one people dwelling in one domain, but who, when, and where, is asked with no satisfactory response.² This scientific conjecture is plausible: that such a people existed in the middle of Asia; that colonies issued from it into India and Persia, and westward into Europe. That they went into Greece and gave the world its philosophy; to Rome, under whose eagle it conquered the world, and gave civilization and law to Germany, to Gaul, to Russia and to Spain.³ Mr. Freeman⁴ shows that this Aryan race had a distinctive civilization before their migration. "As families and clans grew into tribes, and as tribes grew into nations, each has a king, or chief, of some kind, and council of elders and nobles, and a general assembly of the whole people." Three classes of people existed in their society: "nobles by birth, the common freemen, and their slaves."

Of these offspring-nations of the parent people, Greece was the first in time and had pre-eminence in European history. It is no part of this work to treat of this wonderful people, or of its philosophy, arts, literature and polity. Its literature and philosophy have survived the states which produced them, and have molded the mind of the World long after Greece has ceased to command its notice.⁵

ticle on Greece in the 11th volume of the Encyclopaedia Britannica, page 80, and to the numerous histories of Greece which have been written in this century.

The second in time was Rome, whose great republic, changed into the great Empire, gave the jurisprudence and polity through its imperial sway to a greater or less degree to all the countries of Europe. These two great civilizations prepared the way, under Providence, for the modern systems of polity.

Greece had given the world literature, philosophy and art; Rome, jurisprudence and the organization to control nations by government; and these, under the influence of Divine teaching, through the Semitic race, have given to the world, in this modern era, Christian philosophy, constitutional government and liberty for man.

At a very early period, and long before the Christian era, colonization of Aryan or Indo-European people was made in the northeastern part of Europe and in the northern part of what is now called Germany. Recent research has been active in getting at the genesis of our English institutions, and the field is rich in interest and in valuable fruit for political science. We must limit ourselves to presenting a skeleton of results, and referring the reader to works that will satisfy his speculative curiosity.¹

Stubbs has said, in succinct language, of the parent stock of the English people: "The German element is the parental element in our system, natural and political."² This claim may be confronted with modifying facts, but as a general conclusion seems to be established on firm foundations.

In the wars of Julius C�sar he came in conflict with this Teutonic race, and has left in his history a sketch of its habits, etc.³ C�sar praises their industry, chastity, hardihood and hospitality. They hunt, and study war; nomadic, wandering from place to place; cultivating a spot for a year,

¹ Palgrave's Rise and Progress of the English Commonwealth; Kemble's Saxons in England; Green's History of the English People; Freeman's History of the Norman Conquest; Stubbs' Constitutional History of England; Stubbs' Select

Charters; Creasy on the English Constitution; Taylor on the Origin and Growth of the English Constitution.

then abandoning it and moving elsewhere. This was to prevent accretion of wealth � the greed of the powerful over the weak; to avoid the building of luxurious homes; to prevent avarice and to produce content by equality of condition. In war, chiefs are chosen for merit; in peace, principes regionum atque pagorum administer justice and suppress litigation. The Suevi (the most warlike tribe) are very aggressive. They have a hundred pagi or territorial divisions, each of which furnish a thousand champions; the rest of the population stay at home to furnish supplies. In the next year this is reversed. Here is a picture of the rude, half-civilized, hardy, brave and strong stock, whoso outcome promises greatness. It had the element of national independence and power, blended with local division for local rule, and a life which forbade the creation of wealth and the resulting condition of poverty. This was not less than half a century before the Christian era.

§ 70. Tacitus, in his Germania, gives a picture of the Teutons a century and a half later. He describes the race as one composed of homogeneous tribes, with the same tongue, religion, physique and institutions. All of pure and unmixed blood. They were pastoral. Money and merchandise were held of little account. They had no cities, but villages of rudely-made houses and with no streets. Their chastity and fidelity to marriage vows, plainness of dress, temperance of habit, are still, as in C�sar's time, marked characteristics. Love for hunting has declined; indolent habits succeed with some of the vices of wine and gambling. No longer nomadic, they live at farm homes, local organization having increased in strength, and their moral tone is higher than at Rome. They are still largely herdsmen; agriculture has advanced; migratory habits have yielded to fixed habitations and homes of substantial character. Village settlements are permanent. The arable land is occupied by the whole community and is allotted annually to the freemen. Corn alone seems to be produced; still there is growing up the idea of separate property, and land grants become largely prevalent.

There are distinctions of blood and of rank: nobiles, ingenui, liberty and servi. Nobiles by descent. The ingenui are free and equal to the nobles, except in descent. Liberti are freedmen. Servi are slaves. The official distinctions: princeps, dux, sacerdos, rex. The princeps was permanent in dignity and elected in the National assembly, with warlike companions called his comitatus. The princeps fought for victory � the comitatus fought for their princeps. There was no central power or federal bond between the tribes in the time of Tacitus. Each tribe had its king elected from the nobiles, who were different from the principes. A tribe or civitas was the national unit, divided into pagi. The central power of the civitas was in the national assembly of freemen. The princeps was there to preside, not to command. This assembly decided on peace and war, elected magistrates for the pagi and vici, and also acted as a high court of justice. Local courts were held by the elected principes in the pagi and vici.

The pagus was a large subdivision of the civitas � a canton; the vicus was a village, township � tun, i. e. inclosed. In these local courts the principes presided, but not as judges. There were a hundred assessors who gave the law and decided cases. Each pagus furnished a hundred older men (aldermen) as assessors to the court, and a hundred younger men as warriors for the field. These last were led by the dux, and the comitatus by the princeps. Besides these, freemen were arranged in families to fight for home � the origin of our militia force. Tacitus said this last was the strongest. The pagus was originally perhaps composed of a hundred families, not necessarily of that number � a germ of the Hundred, which was an historic organism in every branch of the German race. The vicus was the subdivision of the pagus � the origin of the township in Teutonic and English history.

We see in this primitive stage of the race a loose union of compact localisms � a tie of nationality, accordant with distinct and individual political autonomy, and a race ready

on an emergency or opportunity to unite for a common enterprise under great leadership for new fields of life and activity.

§ 71. The Saxons were settled between the Rhine and the Elbe. East of the Elbe were their neighbors, the Angles; north of them were the Jutes. All spoke low German. The Suevi or Swabian tribe spoke high German. These Saxons, Angles and Jutes colonized England in the fifth century. The peculiarity of these tribes will appear from the following considerations. Other Teutonic tribes invaded Gaul, Spain and Italy. The difference between these two invasions is important to be noted for the diverse results of the two.

First. The Teutons who invaded the Celtic countries, Gaul, Spain and Italy, were imbued with Roman and Christian ideas. Those who invaded England had neither; they were pure and heathen Teutons.

Second. The Celtic countries invaded were imbued with Roman and Christian ideas, as were their invaders; hence, the invaders brought a new political and military organization, but coalesced and fused with the invaded people in religion, language and habits. The Teuton invaders became Roman Christians. On the contrary the Britains, who were Celts, had expelled the Romans before the Saxons migrated to Britain, and had no fixed Roman or Christian ideas; and the Saxon heathen invader, therefore, brought his religion of Thor and Odin with his Teutonic habits and customs unaffected by Roman jurisprudence or ideas.

Third. These diverse results were accentuated by the character of the two invasions. On the Continent migration took place overland by hordes of people of all classes, and was a pure migration. It was not accompanied by fierce conflicts for possession. The invaders and aborigines fused in peace.

To Britain the migration was in small bodies on ships and over the sea. The invaders fought for habitation and settlements fiercely and to the point of extermination. They came in separate bands and founded separate scats of power. The male Britain was killed or driven back to Wales or Corn-

wall. The Saxon men alone remained. British women may have intermarried with these Saxon men, and thus mixed the blood of the Teuton and of the Celt. This is perhaps probable, but the main body of those who remained in Britain were Teutonic in language, for it is said only thirty Celtic words remain; Teutonic in religion, and in social and political customs. It was "Germany outside of Germany."¹

An analogy to the continental migration is found in English migration into French Canada and into Louisiana. The analogy to the invasion by the Saxons is that of the invasion by the English of the aborigines of America, In both cases the invaded die or are driven away.

Fourth. Another striking characteristic difference comes from the purpose of migration. A migratory movement of a mass of people to settle without conflict has no heroism in it. But the Saxon adventurers in their rude crafts, cutting loose from home to establish new estates by force of arms in a new land filled with hostile aborigines, is a heroic crusade to plant a new type of civilization on new sites of power. The dux who led such an expedition with success might well be the founder of a new state. These adventurers carried with them their commonwealth of institutions and habits. The civitas, or tribe, composed of pagi, and each pagus composed of vici, or townships, constituted a form of statehood which was fastened as an institution on the soil of England.

From A. D. 449, the date of the invasion, to 597, the landing of St. Augustine, the Saxon continued heathen, and transformed the political system of his Teutonic home, with its civitas, pagus and vicus, into the Saxon system of shire, hundred and township, which was the Saxon state in Teutonic mould. The epitome of the development of the Saxon organism from the seventh to the eleventh century is thus described by Dr. Stubbs:

"The people occupy settled seats; the land is appropriated to separate townships, and in these certain portions belong

in entire possession to allodial owners, whilst others are the common property of the community; and there are large unappropriated estates at the disposal of the nation. Each of these townships has an organization of its own; for certain purposes the inhabitants are united by the mutual responsibility of the kindred; for others they are under the authority of their reeve, who settles their petty disputes, collects their contributions to the national revenue, leads the

effective men to the fyrd, and with his four companions represents the township in the court of the hundred or in the folkmoot. The townships are not always independent; sometimes they are the property of a lord, who is a noble follower. comes, gesith, thegn, of the king, with jurisdiction over the men of the township, and many of the rights which wo associate with feudalism. Where, however, this is the case, the organization is of the same sort; the reeve is the lord's nominee, the moot is the lord's court, the status of the inhabitants is scarcely loss than free, and their duties to the

"A cluster of townships is the hundred or wapentake; its presiding officer is the hundred-man: he calls the hundred-moot together, and leads the men of the hundred to the host, or to the hue and cry, or to the shiremoot. He is generally elected, although sometimes the feudal clement is all-powerful here also, and he is nominated by the noble or prelate to whom the hundred belongs. He has no undivided authority; he is helped by a body of freemen, twelve or a multiple of twelve, who declare the report of the hundred, and are capable of declaring the law. Nearly all the work of judicature is contained in this, for questions of fact are determined by compurgation and ordeal. The shiremoot is a ready court of appeal, and the royal audience is accessible only when both hundredmoot and folkmoot have failed to do justice.

"A cluster of hundreds makes the shire; its officers are the ealdorman, the sheriff and the bishop; its councillors

are the thegns, who declare the report of the shire; its judges are the folk assembled in the shiremoot, the people, the lords of land with their stewards, and from the townships the reeve and four men and the parish priest.

"The shiremoot is the most complete organization under the system: it is the folkmoot; not the witenagemot of the shire, but the assembly of the people; in it all freemen in person or by representation appear. Its ealdorman is appointed by the witan of the whole nation, like the princeps of Tacitus; its reeve once, perhaps, elected from below and authorized from above, like the king or bishop himself. The ealdorman leads the whole shire to the host, the sheriff commands the freemen, the lords their comites and vassals, the bishop's reeve or abbot's reeve the tenants of the churches, all under the ealdorman as the national leader. The ealdorman and bishop attend the witenagemot; the sheriff executes justice and secures the rights of the king or nation in the shire.

"The union of shires is the kingdom; whether there be two or three as in any of the seven kingdoms, or all together in the kingdom of Athelstan or Edgar. But the kingdom is merely an aggregation of shires, which in many cases have themselves been kingdoms of earlier formation, with the minimum of necessary administration. The king is at the head: the national council is the witenagemot."^l

the vicus of the Germania. Each town has its own organism, with its reeve as their leader, who, with four companions, represents the town in the hundred, or folkmoot. The lord or thegn (thane) has something like feudal powers. A cluster of these townships makes the hundred or wapentake. This hundred is the pagus of the Germania. Wapentake, the name, is supposed by some to be weapontake, because there

the people received their arms. By others it has been held to mean weapon-touching, because that was the mode by which men voted their consent to any measure � touching their weapons; and hence it came to be a district governed by those elected by such a vote. The presiding officer of the hundred was the hundred-man. He summons the hundred-moot, and leads the host to battle, or to the shiremoot. He, with twelve men, declare the report of the hundred as the

Second. A cluster of hundreds makes a shire � the civitas of the Germania. Its officers are an eadlorman, a shire-reeve¹ (sheriff) and bishop. The thegns, as councillors, declare the

judgment of the shire-moot, which is by the people in the shire-moot comprising the lords of the land, their stewards and the reeve and four representatives, and the parish priest of the townships. The shire-moot is therefore a folkmoot, or the people in their primary capacity with the representatives of the townships. It is not a witenagemot; that is a selected body. The ealdorman leads the whole shire to the host and is appointed by the witan of the kingdom. The sheriff commands the freemen, and lords their vassals and comites. All of these are under the ealdorman, who is a national leader. Ealdorman and bishops attend the witenagemot of the kingdom.

Third. A cluster of shires makes the kingdom, which is an aggregation of those localisms. In the Saxon heptarchy, or seven Saxon kingdoms, each was separate and distinct from the others, and each was composed of shires. It seems that the church was the first organic unit of these kingdoms, and as the bishops of the church were more or less coincident with the shires, the church became the source of national unity through its ecclesiastical unit. The witenagemot of the kingdom (the meeting of the wise men) is the legislature of

¹ A. S. reave, to tear away by force; hence the reeve derived his name from this power.

the kingdom. It was not a folkmoot, but a body of select representatives, composed of princeps, comites, thegns, ealdormen and bishops of shires. Dr. Stubbs thinks that the people also had the right to appear in the witenagemot, but they did not. The powers of the witenagemot are very large � to elect and depose kings, to make war and peace. and legislate in conjunction with the king.

Fourth. The king (cyning) was the leader of the host to battle. He was not a law giver or the fons justici�, but with his witan was the law-making power. Towards the close of Saxon history, kingly power had largely increased, and there were marks of feudalism developed in its polity. Mr. Taylor thinks the shires of the seventh century shrank to hundreds in the tenth, and the kingdoms of the former century shrank to shires in the latter.¹

This institutional Saxon commonwealth would thus seem to have been the unity based on local differences and distinct organisms, which thus federatively secured all against foreign foes and the liberty of each in its localized power. This is a foundation stone of Saxon polity.²

§ 73. The Norman invasion in 1066 overthrew the Saxon kingdom at Hastings. William I., the conqueror, brought feudalism with him, and divided the Saxon lands among his Norman nobles, making sixty thousand fiefs, which were held to the king by feudal tenure. His great council, which was successor to the Saxon witenagemot, exercised like powers with the king and was constituted in like manner, but, as the Norman landholders were tenants in chief to the crown, the Norman witan, or Great Council, was composed exclusively of Norman nobles and Norman bishops; no Saxon held a seat in the Council. But a more select body gathered about the king as his councillors in the government of the realm. This body was composed of the chief justiciar, a chancellor, and a treasurer, and came to be called the aula,

The Norman nobility, holding the lands in the kingdom by feudal tenure, were vassals of the king but tyrants over the Saxon people. But William the Conqueror showed remarkable wisdom in yielding to the loud clamor of the Saxon people for the laws of Edward the Confessor, who directed a commission to be selected from each shire composed of twelve ..."anglos nobiles sapientes et in lege sua eruditos ut eorum consuetudines ab ipsus audiret." The collection of laws and customs thus made was thus announced to the realm: "Ist� sunt leges et consuetudines quos Willielmus rex post adquisicionem Angli� omni populo Anglorum concessit tenendas �adem, quas predecessor suus Edwardus servavit."^l

Thus Saxon institutions and laws survived the conquest and the shire-courts and hundred-moot, and the township organisms were perpetuated. The king gave the shires to a sheriff appointed by himself who held the Anglo-Saxon county courts.² Thus, underneath the Norman despotism, at the head of which was an alien king, who, with his Norman nobility and the despotic and feudal principles of the era, made the tyranny over the Saxon people a fearful example of the fate which follows conquest by a foreign power, there survived enough of the Saxon Constitution for the organization of Saxon liberty to seize every occasion for the restoration of its freedom from the domination of the crown and the nobles.

§ 74. The king, through his aula regis, became fons justici�. The jealousy of royal power by the nobles, and the

king's jealousy of the rising power of the great barons, disposed each at critical moments to court the good-will of that great people, who, subject to the tyranny of both, was in such numbers as to furnish the material for the military force of the country. Their power to raise successful oppo-

sition to kingly and feudal authority was successfully repressed when both king and nobles combined; but when they were antagonistic, each found it expedient to court the good-will of the Saxon people as the source from which armies were marshaled.

It is only by comprehending this condition of things that the continued concessions to Saxon liberty during these centuries after the conquest can be fully understood. Feudalism, though a most odious despotism, presented an opposition to royal centralism � the nucleus of formidable antagonism. And thus each feudal baron, though a tyrant over his feudatories, found himself, when backed by their cordial support, no mean rival of the royal chief. Accordingly, without going into details, the generalization may be ventured that through these rude ages of political conflict the royal and baronial power weakened each other, while they were continually strengthening the power of the people, to which each must appeal in their intestine conflicts. The king checked the barons through the courts, and shire, and hundred, and the barons courted the good-will of the people by lessening their feudal burdens. The people availed themselves of the acts of each of these contestants for supremacy to strengthen their own hands to restore their ancient liberties. Hence, when royal meanness invited contempt, and its tyranny provoked defiance by nobles and people in the person of the despicable John, whose treachery to his brother Richard Coeur de Leon alienated all who admired courage and daring, the barons, backed by the Saxon people, seized their opportunity and extorted at Runnymede, from their miscreant monarch, Magna Carta, on the 15th of June, 1215. It is a noteworthy fact that the barons and the people, in their demand for this Charter, appealed to the Saxon laws as the basis for their asserted liberties, thus showing the potential influence of the Saxon element in the construction of the British constitution. This extraordinary paper is the first written formulation of civil rights and political liberties known in English history. It emerged from Saxon institu-

tions, and has ever since been appealed to as the fundamental authority upon all questions of political power and civil rights in the kingdom.

It is true that there had been prior charters by Henry I. and Henry II., but these were less important, and their provisions were embodied substantially in the Great Charter of 1215. In prior reigns, important progress bad been made in the establishment and regular administration of courts of justice by itinerant judges, who held local courts in the shires for the settlement of revenue questions, with the sheriff of the shires, in which settlements all distinctions between Norman and Saxon people entirely disappeared. So orderly had the judicial system become, that Chief Justice Glanville, in the reign of Henry II. (1154 to 1189), wrote his work on the Common Law, in which the decisions of the courts were referred to in large numbers. So that a regular system for the administration of justice between man and man, so essential to liberty, was established in the latter part of the twelfth century.

During this period, also, cities and towns had obtained free charters from the crown for local self-government. These cities were, in the middle ages, on the continent of Europe as well as in England, valuable nuclei of local power over local rights against the force of centralism. All of these events culminated in the Great Charter, of which an analysis will now be given.

§ 75. Leaving out of the consideration a great many important provisions, which relate to ancient feudal polity no longer of practical importance in the historic review we are now making, reference may be had to the following provisions :

The 7th chapter secured the ancient and immemorial right of the widow to dower and to quarantine.

Chapter 9 provided that the land of a debtor should not be seized for a debt due to the king, nor to any one else, as long as the personal property of the debtor sufficed to satisfy it.

The 12th chapter provided that no scutage or aid should be exacted in the kingdom, unless by the authority of the Common Council, except for the redemption of the royal person, etc. This secured the people against royal taxation, as well as against any except that levied by the legislative power of the Common Council.

The 13th chapter secured all the liberties and customs to the City of London, and to other cities, berges, etc.

The 14th chapter provided that the General Council should consist, first, of bishops, archbishops, abbots, earls and great barons; second, of tenants in chief elected in shiremoot through the sheriff and bailiff.

Chapter 17 removed a great popular grievance by making the Court of Common Pleas, in its jurisdiction of questions between man and man, a court fixed to a certain locality, and not to follow the person of the king "ubicunque fuerimus in Anglia."

The 18th chapter provided that certain judicial proceedings, "recognitiones de nova dissaisina de morte antecessoris et de ultima pr�sentatione," should not be taken, except in their counties, by two judges for each county, four times a year, who, together with four knights of each county elected by the county, should take the assizes aforesaid in the county, and at a time and place in the county.

The 28th, 30th and 31st chapters are limitations upon the power of taking private property for public use, or for the use of the public, declaring that no public officer should take the property of any one, unless upon immediate payment therefor, or with the will of the owner.

The celebrated 39th chapter may be thus translated: "No free man shall be arrested or imprisoned, or disseized, or outlawed, or exiled, or in any manner destroyed, nor will we proceed against him, or put burden upon him, except by the legal judgment of his peers, or by the law of the land."

The 40th chapter declares, "Right and justice we will sell, deny, or postpone to no man."

In the 61st chapter is a most remarkable declaration, which may be thus translated: "And we will cause nothing to be

done by any one, either by ourselves or by any other person, by means of which any one of these concessions and liberties shall be revoked or diminished, and if any such thing may have been caused to be done, let it be held null and void, and we will never make use of it by ourselves, or by any one else."

The 63d chapter has this sweeping declaration: "Wherefore it is our will and fixed precept, that the Anglican church be free, and that men in our kingdom for themselves and their heirs forever have and hold all the aforesaid liberties, rights and concessions well and in peace, freely and quietly, fully and intact, from us, and our heirs, in all things and places in perpetuity, as has been before said."

§ 76. It is then clear from the terms of Magna Carta that it was a fundamental constitution in writing between the king, the baron and the people, by which certain rights and limitations of power were unchangeable and forever fixed as a part of the polity of England. It not only declares, as we have seen, that the liberties, etc., shall be held in perpetuity, but that anything done contrary to Magna Carta shall be held to be null and void. This is the germ of the American doctrine, to which we have already adverted, that the Constitution is the supreme law of the land, and all pretended laws and acts of government, contrary thereto, are null and void (irritum et inane).

In the Charter of Henry III., where this Charter was renewed, there will be found in the thirty-fifth chapter a special provision confirming the old Saxon county courts, and a provision limiting holding of property by corporations, which has the germ of all subsequent mortmain legislation.

We may now summarize the results of the conflict between Norman power and Saxon institutions from William I. to John, as follows:

First. Saxon institutions stood their ground with the Norman graft of feudality upon them.

Second. The grand jury and jury system arise out of the selection of recognitors from the hundreds to inform the Crown as to criminals, etc.

Third. When an aid (tax) was decreed by the Grand Council (Parliament), the collection was left to sheriffs of counties and the officers of the Exchequer. The towns and counties were assessed with their respective shares, and the distribution of the burden in detail upon individuals was, under Henry II., made by a sworn body of knights, or lawful men of the venue. In this adjustment of taxation exacted from a shire or a town by the representatives of the locality between the individuals who resided therein, is the germ of local power in the matter of taxation.¹ The same procedure as to the tax on lands had been applied in the time of Richard I.;² and in his time all county officers, such as coroner and others, were made elective, and the selection of the grand jury was in the same way.³

Fourth. The power of the Grand Council in matters of taxation was fully recognized in Magna Carta.

Fifth. The English Body-politic de facto was a Norman king, Norman lords and clergy, and the Saxon people.

Sixth. Cities, towns and boroughs were increasing in number under royal charter, as nuclei of popular independence and power.

Seventh. The Norman clergy was not in sympathy with the Saxon people. The Norman king was not under fealty to the Pope. The Saxons, as a mass, were not in sympathy with the Pope, whose intervention in favor of William at Hastings made them unfriendly to him.⁴

Eighth. Magna Carta, in 1215, was the written Constitution for the Realm of England, fixed and supreme.

Ninth. Prior to Magna Carta, John, November 7, 1213, issued a summons for a parliament, in which he directs the sheriff of each county to "summon four discreet men of your county to come to the general council at Oxford, ad loquendum nobiscum de negotiis regni nostri." This may be regarded, says Dr. Stubbs, as "the first instance of the sum-

moning of the folk-moot to a general assembly by the representative machinery already used for judicial purposes."¹

§ 77. The Thirteenth Century, beginning with John and ending with Edward I., is a new era in English history �

Henry III. (1216 to 1272) was devoted to foreign influence and allied himself with the papacy against the National Church, and though he confirmed Magna Carta, yet he violated it so flagrantly that at last he provoked a rebellion under Simon de Montfort, Earl of Leicester, who, trusted by clergy and nobles, at the head of the barons, seized power, and on the 14th of December, 1264, issued writs for a parliament, in which he summoned barons and ecclesiastics, two knights from each shire, and two burghers from each town.² This is recorded as the first popular representation in Parliament; certainly the first time the shires and towns were called.

The royal power of Henry III was restored after the death of Leicester on the field of Evesham, by general peace in 1267. During the reign of Henry III., Bracton had published his great work on the Common Law, containing the legal decisions in the English courts, with the refined and expanded principles of the Civil Law. English jurisprudence had thus laid its solid foundations in the written works of Glanville and Bracton before the accession of Edward I.

On the death of Henry III. in 1272, Edward I. ascended the throne. He had the experience of his father to guide and to warn him. Sir Matthew Hale has called him "the English Justinian." During his reign the law was defined, the judiciary was organized, and the first organization of the three estates of the realm into a representative parliament was accomplished. The Grand Council had been composed of barons and ecclesiastics. It was needed to make it also the third representative of the third estate of the realm � the

Saxon people. They had been, as we have seen, summoned by John in 1213, and by the Earl of Leicester in 1265. The shire-moots, or people's body, was already part of the political system. John had summoned the knights of the shires "ad loquendum nobiscum" etc. Taxation had been upon the shires and boroughs; the distribution and collection of each burden had been already a matter for the jurisdiction of the shire-moot and the borough. The same was true as to the quota of tax assessed upon the clergy. Taxation thus dealt with estates of the realm and not with men.¹

In 1272 and 1275 Edward summoned knights to Parliament; but Dr. Stubbs thinks that knights were chosen to Parliament by shire-moot and burghers by boroughs permanently only at and after 1295. This year, therefore, may be regarded as marking the era of the Commons as a permanent estate of the realm, and they were summoned by Edward "ad faciendum," and not merely "ad loquendum" (that is, to enact, and not merely to speak).² Let it be observed that the election of representatives was in the shire-moots � in that Saxon localism, composed of its clusters of hundreds, and each hundred of its clusters of townships; so that the shire was a state of the realm.

When the Commons sat in a separate body from the Lords and Ecclesiastics is not accurately determined. Dr. Stubbs thinks they did so as far back as 1295, though the first record of their sitting in a separate chamber he makes to be 1332.³ Certainly in the time of Edward IV. the Commons were summoned "ad consentiendum et faciendum " (i. e., to assent to and enact). In the 15th of Edward II. it was declared that all things must be done "in Parliament by king, and by assent of prelates, earls, barons and commonalty of the realm, according as it has been hitherto accustomed." And as early as "the 3rd of Edward I. the Great Council of

the Nation is called the ' Parliament,' and the statutes of that year are by the assent of the ' Arch-bishops, Bishops, Abbots, Earls and Barons, and all the commonalty of the Realm.'"¹

As soon, therefore, as the Commons sat in a separate body, the Parliament became bi-cameral, and the Commons sitting in distinct chamber fixed the principle of concurrent majorities of the House of Lords and of the House of Commons as to legislation, including taxation. This fixed the power of the Commons in the matter of taxation forever, and made no tax and no legislation possible except by their concurrent assent. This based all legislation, including taxation, upon the concurrent majorities of the two Houses.

§ 78. In the thirty-fourth year of Edward I. (1306), the act "De Tallagio non Concedendo" was passed, in which the following fundamental declaration was made:

"Nullum talliagium vel auxilium, per nos, vel haeredes nostros, de cetero in regno nostro imponatur seu levetur, sine voluntate et assensu communi archiepiscoporum, episcoporum et aliorum praelatorum comitum, baronum, militum, burgensium, et aliorum liberorum hominum de regno nostro."²

During this reign Magna Carta, was confirmed eleven times, showing the firm establishment of its principles and of the other acts as part of the permanent constitution of the realm. Liberty was progressive. And in the twenty-fifth year of Edward I., it was declared that "No manner of aids, tasks or prizes should be taken except by the common assent of the realm."³ Several other statutes were passed in this reign which are too important to be omitted. Among these may be mentioned the statute "De Donis," which created entails (in the interest of the nobles), and the statute of "Quia Emptores terrarum," favorable to tenants, and the statute of "mortmain," which was a check upon the corporate and ecclesiastical power.

²De Lolme on the Constitution, pp. 28, 29, 30, and note. ³ Id., pp. 30, 31, and note.

During this reign, too, Edward I. divided the judiciary into four courts: King's Bench, Common Pleas, Exchequer and Chancery; and "Nisi prius" courts, conducted by itinerant judges, were constituted in 1285. The county courts were well defined, and confirmed as a part of the judicial system. The jury system was also improved. Thus, two centuries and a half after the conquest, the conquered Saxons, by tenacity to their primal institutions, took and held the vantage ground against their Norman conqueror.

The results of this reign may, therefore, be thus summarized: The Commons were made a separate estate of the realm, and the principle of concurrent majorities was established; representation and taxation were correlated, and thus wedded power to right; a regular judiciary in and near the homes of suitors was established; and the liberty of person and property declared by Magna Carta was conserved by the independent power of the Commons. The reign of law and constitution was firmly established under the "English Justinian."

Edward made the government of the kingdom a government of these distinct estates or orders of the realm, in which the kingly power was large in the claim and use of prerogative. The House of Lords � the true successor to the Saxon Witan � was filled with Norman nobles and prelates, and the House of Commons � the third estate of the realm, representing the Saxon people in their several shires � had its equal place along side of these others. Each shire was a corporate entity � the quasi body politic � in fact a former kingdom, now a shire and a federate member of the union of shires.

Henceforth the House of Commons claimed taxation as its undoubted right, initiated tax bills, and as early as 1309 attached to bills granting money to the Crown, petitions for the redress of grievances under which the people suffered; and later on made redress of grievance a consideration for, and then a condition to, the granting of subsidy. This be-

came so marked in the action of the House of Commons, that in the time of Charles I. the Speaker of the House of Commons said, "Grievances have been first considered before supply." Besides all this, the House of Commons claimed a right to impeach officers of the Crown, and the power to scan appropriations as well as to originate taxation.

§ 79. As early as 1330, the Parliament, following the constitutional right of the Saxon Witan, deposed Edward II., and in 1400 deposed Richard II. At a later date, Edward IV., of York, held that the York kings were de jure, while Lancaster kings were de facto, because the former claimed by hereditary title, the latter under act of Parliament. In the reign of Edward II., "year-books" began � the regular and annual reports of the decisions of the courts settling the law upon judicial foundations. The art of pleading was growing in precision and judicial action became regular.

During the warlike reign of Edward III., there was a growing jealousy of the church, and of the papacy. Acts of praemunire forbade appeals from any home court to the

Pope, or any foreign tribunal. The celebrated law of treason, defining that crime precisely, and excluding constructive treason, was passed, and is the prototype of a like provision in the Constitution of the United States.¹ Annual parliaments were provided for by law in the fourth year of Edward III. Court procedure was required to be in the English and not the Norman language (36th of Edward III.). County Courts wore to be held four times a year, composed of Justices of the Peace (30th of Edward III.). Trial by jury was greatly strengthened.

In the reign of Richard II., John Wycliffe, the prototype of Martin Luther, translated the Bible into the Saxon language. He had a great following among the people. These followers were called "Lollards," a contemptuous expression used by the members of the established Church. These people, the followers of the reformer, were greatly perse-

cuted. The Commons, largely in sympathy with these heretics, resented this action with indignant remonstrance. So that in the fourteenth century, the struggle between the Papacy and the reformers began � one hundred and fifty years before the outbreak of Luther's reformation.

The chancery, however, grew in force, despite the jealousy of the House of Commons. The House of York, under Edward IV., broke in large degree the power of the Commons by restricting suffrage, but the last of the house of York, whose claim to the Crown was de jure, was overthrown in 1386 at Bosworth field by the Earl of Richmond, who, upon the death of Richard III. at that great battle, ascended the throne as Henry VII.

These facts go to show the conflict between the de jure prerogative of the Crown and the self-assertion of power by the Saxon commons. The struggles between the barons under the rival Houses of York and Lancaster broke down their wealth and power. The Saxons rising in wealth and self-assertion and educated by the great reformation of Wycliffe, Tyndale, and the like, were consolidating their power and influence by an advance from poverty to ownership of lands.¹

§ 80. Upon the accession of Henry VII. to the throne in 1486 a new era is at hand � modern history begins. The art of printing, the invention of gunpowder and the mariner's compass had become the material instruments of a higher progress. Columbus was dreaming of a new world; Copernicus of a new heaven. Galileo in the next century is to find new forces in the Universe. Luther, in prattling infancy, is growing up to the stature of the Archimedes of the Reformation. The Roses, once at war, bloom together on the stem of the House of Tudor. The close of the fifteenth century is the prelude to that which opened with Henry Tudor and closed with Elizabeth � a century of religious strife that convulsed Europe. The Reformation, anticipated, as has been seen, by Wycliffe, Tyndale, and others,

had deep hold upon the Saxon race in England, and enlarged and strengthened the principles of religious and civil freedom, the seeds of which, in the early part of the seventeenth century, were planted in the virgin soil of the American continent. Let us trace the influence of this new and wonderous force in civilization upon the cause of constitutional government in England.

§ 81. Mr. Hallam¹ has stated with great precision and comprehensiveness the status of the English Constitution in these words:

"The essential checks upon the royal authority were five in number: 1. The king could levy no sort of new tax upon his people except by the grant of his Parliament, consisting as well of bishops and mitred abbots or lords spiritual, and of hereditary peers or temporal lords, who sat and voted promiscuously in the same chamber, as of representatives from the freeholders of each county, and from the burgesses of many towns and less considerable places, forming the lower, or commons' House. 2. The previous assent and authority of the same assembly was necessary for every now law, whether of a general or temporary nature. 3. No man could be committed to prison but by a legal warrant specifying his offense; and, by a usage nearly tantamount to constitutional right, he must be speedily brought to trial by means of regular sessions of gaol-delivery. 4. The fact of guilt or innocence on a criminal charge was determined in a public court, and in the county where the offense was alleged to have occurred, by a jury of twelve men, from whoso unanimous verdict no appeal could be made. Civil rights, so far as they depended on questions of fact, were subject to the same decision. 5. The officers and servants of the crown violating the personal liberty or other right of the subject might be sued in an action for damages, to be assessed by a jury, or, in some cases, were liable to criminal process; nor could they plead any warrant or command in their justification, not even the direct order of the king."

It is interesting to note how these principles of constitutional liberty resulted from the conflicting elements of which English society was composed; for liberty in all history has emerged from conflict.

The first conflict was that of two powerful races � the Norman and the Saxon. Each jealous of the other and contending for pre-eminence. One of these races was devoted to Teutonic institutions fixed firmly in their own country by six centuries of usage, and in their local organisms of power, the shires, hundreds and townships. Against these inherited institutions, the Norman king, baron and clergy fiercely contested for supremacy. Then again the popular religion of the Saxons was jealous of the foreign Norman priesthood and of the Pope, who had thrown the weight of his bull of excommunication on the side of the Norman conqueror. Then again, there was the conflict of the civil with the common law � the tendency of the Norman secular and ecclesiastical power being favorable to the civil Roman law they had brought with them, and the Saxon struggling for his homo law in the institutions of the Saxon commonwealth.

Out of these fierce conflicts, in which every inch of ground was contested, grow the Constitution of the kingdom, where each estate of the realm found its independence and distinct organism, without the concurrence of all of which no action was possible. These contesting elements thus became the nuclei of distinct interests, each one of which found its representation in some branch of the governmental machinery, and secured the protection of each by requiring the concurrence of all to governmental action.

One other statement is necessary. The insulated position of England gave liberty a great advantage, because standing armies were not necessary for protection against neighboring nations, as was the case on the continent of Europe; standing armies being the pretext of despotism as a means of defense against foreign foes to be used in the suppression of the liberty of the people.

The wars of the Roses, moreover, had destroyed the men of the nobility and wasted their wealth. Of fifty-three temporal barons in the time of Henry VI., only twenty-nine were of age in the time of Henry VII.¹ Along with this waste of baronial wealth, the Saxons by thrift and industry had acquired great riches, bought the lands which the nobles were compelled to sell, and acquired a landed influence which is always potential in the support of political power.

Though Henry was despotic and arbitrary, yet Mr. Hallam says: "When general subsidies were granted, the same people, who would have seen an innocent man led to prison or the scaffold with little attention, twice broke out into dangerous rebellions." The Commons clung during his reign to the money power with great tenacity.²

The reign of Henry VIII. was one in which royal prerogative was pressed to its extreme limits. The insolent tyranny of Cardinal Wolsey produced fierce conflicts with the Commons, who showed great reluctance to the grant of taxes, and resort was had to compulsory benevolences. These were met with bold outbreaks against the royal agents, and the power of the king yielded in some degree to them; but a new element in constitutional history enters into the problem in this century and during this reign. Martin Luther burned the papal bull at Wittenberg on the 10th of December, 1520. This was the fire of the Reformation which spread throughout Europe. From this time to the final establishment of the constitutional monarchy in 1088-89, the influence of the reform movement upon the constitutional history of England was paramount. The civil and religious elements combined in irresistible force to curb the royal power, and to give paramount influence to the will of the people in England.

It is not intended to consider this question in large detail, but to collate the main facts which conduced to this beneficent result.

§ 82. The history of free institutions before the Christian era was not hopeful for their permanence and stability. This arose from the fact already referred to, that the nation was but an enlargement of the patriarchy which generated and perpetuated the patria potestas of the family. The State was all � the man was zero. It required a new principle to remove this pall of servitude which hung over the human race. The germ of modern free institutions is in the personal consciousness of the individual man that he is a creature of God, with responsibility to Him for self-use of his God-given powers, and that to work out his personal destiny upon this personal accountability to his Divine King, he needs to be free from the restraints with which despotism would bind his body, mind, heart and conscience. When man has this idea planted in his soul, it becomes a moral force which dreads treason to the Almighty Sovereign more than all the threats of human authority, and makes "resistance to tyrants obedience to God!"

Christianity furnished, as no other form of philosophy or religion has ever done, this impelling motive to human consciousness. It roused man from the torpor of insensibility as to his true relations with God and his fellow-men, to a quickened conscience and a profound sense of his individual and infinite responsibility; and then to a brave self-assertion of his right to liberty, as essential to his duty to God in working out his awful and sublime destiny.

This new inspiration for the human soul has made modern civilization. All philosophic speculation, whether it bows with religious reverence before the founder of the Christian system, or rejects its divinity, must concede this; and it may be assumed without further discussion. The result of this new motive in man under the inspiration of Christianity makes the contrast between the governments of ancient and modern times striking and instructive.

Even in the ancient republics, as signally in their monarchies, the state (po/lij) was everything, the man but a fraction of the mass. Their republics transferred power from

the one or the few to the many, but the many were prone to overlook the rights of the man in achieving the advancement of the State. Glory for the Nation was always preferred to the liberty of the man. In modern times the man, in his deep consciousness of personal duty and infinite destiny, has asserted liberty as his right against all human authority. Ecclesiasticism was broken before the revolt of the

Reformation, and kings, on the block or in exile, have yielded to the boldly asserted freedom of the man; and power has been claimed for the people in order to this liberty of the man.

Hence it is obvious, that when the religion of the government differs from that of the people, a struggle must result between invaded conscience and the powers that be. Power may touch the man's life, property and family; his respect for the government de facto and social order may lead him to submit; but touch his awakened conscience, invade his soul, put manacles on his conscience, � cut off the avenue of union between him and his Maker, � make him renounce the faith which binds him to the Cross of the Divine Author of his origin, and you arouse a power which the ancient world never knew, � which Christianity has alone created, and compel a popular resistance to the orders of government which are in conflict with the conscientious convictions of the man.

the people by a religious faith, which has such muniments of title � such foundations for its creed, as those which Christianity presents. The man will welcome martyrdom to avoid apostasy, and, to save the crown of his Celestial King, will strike down the throne of his earthly monarch. He cannot obey the order of a human king against the commands of his Divine Sovereign. Loyalty to a crowned head becomes treason to God.¹

What would have been the result of the Reformation upon the English constitution had the court and people been at

one, as in France and Spain, it is needless to inquire. It would at least have made the result doubtful.

But the circumstances in England were peculiar. When Luther burnt the papal bull at Wittenberg, England was papal as to Crown, and the people were divided. But, as already indicated, the seeds of the Reformation had been sown one hundred and fifty years before Luther burned the papal bull, by Wycliffe and his disciples. His followers were opposed and persecuted in former reigns. Their zeal, strengthened by persecution, created such a numerous and powerful band of dissenters that we are told that one of the bishops declared," That the London juries were so prejudiced against the Church that they would find Abel guilty of the murder of Cain."¹

Why the Saxon people were inclined to follow Wycliffe and his teachings against the Papacy may be learned from authentic facts stated by Thierry. The Norman invasion was largely aided by the Pope in his excommunication of Harold, the Saxon king, and his adherents, and by the authority given to William the Conqueror to invade England and bring her back to obedience to the Holy See, and to reestablish there the tax of St. Peter's pence.² The Saxon people could not fail in their hearts to attribute the ruin of their commonwealth to papal intervention, and in the homes of the Saxon people there would necessarily be a feeling of hostility to the Holy See, whose powerful aid had accomplished the ruin of their commonwealth. Besides this, the Saxon priesthood were superseded by Norman ecclesiastics.³So that among the clergy and the laity of the Saxon people there was naturally a fierce, though it might be suppressed, hostility to the Norman power in church and in state.

³ Thierry's History of the Norman Conquest, pp. 320-21; Hallam's Constitutional History of England, ch. 2.

to the anti-papal doctrines of the English reformers, Wycliffe, Tyndale and others; so that for a century and a half before the outbreak of the Reformation in Europe, the muss of the Saxon population in England were prepared to adopt the principles of the Reformation as they were announced by Luther.

When, therefore, Henry VIII, published his answer to Luther, and assumed the position of champion for the papal See, he divided the nation. While he was sustained by the old adherents of the church � clergy as well as laity � he created deep-seated hostility in the hearts of the heretics, the mass of whom were Saxons. All the spirit of that race � its love for its ancient institutions � its hostility to the Norman king and barons, were intensified by the fierce current of zeal which religious sentiment poured into the flood of hostility to the crown. The king purposed to absorb in himself all temporal power; and to this end strengthened the Star Chamber, that terrible tribunal which registered the royal edicts as judgments, and put life and property under the royal heel. This despotic tribunal had long existed, but his predecessor and himself gave it greater potency by its arbitrary cruelty � and put all departments of the state in subjection to his will. The judiciary held office durante bene placito. Human liberty could only appeal to the courts for protection, but as they were subservient and dependent upon the crown, the safeguard of liberty became a fatal engine of tyranny.

The barons were broken by continual war; their wealth diminished, and the Commons were intimidated. The king absorbed all power, except that reserved power of a liberty-loving people, which awaited its opportunity to overthrow what, for the time, it feared to attempt. The case seemed hopeless. But Henry tired of Catherine and asked the pope, whose authority he had maintained against the apostasy of Luther, for divorce from her. His Holiness refused. The "Defender of the Faith" became the enemy of the Roman

See from the moment it refused to yield to his illicit purpose. But Henry, while breaking with the Pope, did not yield to the Reformation. He held to the doctrines of the Papacy, which the reformers discarded, while overthrowing papal supremacy, which Catholics recognized.¹ His action, however, introduced in England the heretical books of the continental reformers, and, by throwing the weight of royalty against that of Papacy, a great impetus was given to the Reformation movement in England.

§ 83. But Henry was not a religious reformer. He looked to self-aggrandizement, and consummated his ecclesiastical policy by two great changes:

First. The supremacy of the king in the Church of Christ. Second. The abolition of many of the monasteries and confiscation of their properties to the royal fisc.

The effect of the first was to reduce all clergy to entire subjection to the crown, but its counter-effect was more powerful; it transferred to the crown all the hostility the religious reformers had dealt against the Church of Rome. It is obvious that church and state � the double-headed autocracy, ecclesiastical and political � presented a double-headed object of hostility to the followers of the Reformation. For the religious element in Great Britain, like that of the Scotch covenanters, was not only against the headship of the Pope in the Church, but a fortiori against the king as the head of the church. The formula of the Scotch Church was briefly expressed: "Christ is head of the Church." Therefore they held that no other human headship, even St. Peter, was to be tolerated, and for a stronger reason that C�sar was not, and could not be, the head of Christ's Church. Hence the covenanters of Scotland and the reformers of England were more bitterly hostile to the union of Church and State, under the royal headship, than to the supremacy of the papal See. The only reformers who adhered to the royal headship in the Church were

those who left Rome with Henry and wore dependent on him for the holding of their living.

§ 84. This summary of facts is intended simply to show that the action of Henry, which for the time largely increased his power, by combining in himself ecclesiastical as well as civil supremacy, raised against this double-headed power a double-headed opposition. For the Commons of England were composed of two classes: the intensely religious and the non-religious (not irreligious) elements. The religious reformer cared less for civil than religious liberty; the non-religious more for civil than for religious freedom. But each saw his long-cherished right involved in that of the other. The despotism which trampled on the one could as well destroy the other. Oppression made them one; it produced the Hampdens of a later century. Had Henry defied the Pope, and not transferred the tiara of the See to his royal head, the Reformation might have rallied to him; but in assuming for the crown the papal headship he diverted the fierce enmity of the Reformation from the Pope to himself.

In the second measure above mentioned � the abolition of monasteries and confiscation of their property � the king gained great advantage over the people. It made him independent of the Commons for grants of money by pouring the treasuries of the monasteries into the royal coffers, and, by the grant of the wealth and domains of the See to the clergy of the Church, the Crown put the Church at its feet.

But we are told that the Commons bought the lands of the monasteries exposed for sale, � for the Saxon by his thrift had accumulated wealth. The nobles were poor, and thus the Saxon Commons obtained a foothold upon the land of the realm.¹ The clergy, by becoming the dependent pensioners of the throne, diminished their own self-respect and brought upon themselves the hatred which attached to the king, and

thus the reformers arrayed themselves in fierce phalanx against the Church and State.

In the short reign of Edward VI., the Reformation was strengthened by the council of Cranmer and Ridley, who organized the Church upon the basis of the spiritual supremacy of the king, to which many reformers objected. During his reign, and the succeeding ones of Mary and Elizabeth, the rising spirit of the Commons was checked by the inauguration of a system of rotten boroughs. These boroughs, under the control of the crown and nobility, chocked the power of the real representatives of the people in the House of Commons, and undermined the integrity of that house, which was the great resistant to the power of the crown. It is thought, however, that the reform doctrine made real progress during the minority reign of Edward VI.¹

§ 85. At the death of young Edward, Mary ascended the throne in the year 1553. She was a bigoted papist, and married Philip of Spain, a papist in religion and a despot in politics, who was trained in the despotic principles of continental monarchy. Like Louis XIV., he would have said, "L'�tat c'est moi!" Her reign, therefore, accelerated the rebellion. To dam a torrent may temporarily check a flood, but unless firmly fixed such a temporary check will surely be followed by disaster.

First. All the Protestant clergy, whose places in the establishment were filled by papist successors, were thrown into sympathy with the non-conformists as never before. They had suppressed a similar overthrow; antagonists before, they now combined; and as the reign was too short (five years) to extinguish Protestantism, tyranny only checked it for a moment to make its current stronger thereafter.

despotic race, and he a foreign king. Alien in race � alien in institutions � alien in religion � how could Englishmen endure it? Shall Spain rule England? Shall the Reformation be extinguished by the Spanish inquisition? In the fierce answer which Saxon Protestants gave to these questions, it is readily seen that the fires of religion and patriotism would glow together in preparing for the conflagration of the seventeenth century.

§ 86. At the death of Mary in 1558, the nation rebounded to its Protestant position, and hailed with enthusiasm the accession of Elizabeth, the daughter of Anne Boleyn, one of the most extraordinary women who ever sat upon a throne. She was an arbitrary Tudor. She loved power and used it without limit; but with all her faults, hers was a great reign. Under her sceptre England sent forth her sea-kings, who braved the deep to extend her empire. Her navy grew into paramount strength, before whose prowess and the tempest of God the Spanish Armada dissolved upon her shores. Her reign was the era of Spencer and Shakespeare � of Bacon and Coke � of Raleigh and Blake. Liberty, despite her arbitrary sway, rose into bold debate and self-assertion during her reign. The balance between contending factions she held with marvelous skill, and dying, left a kingdom powerful abroad and more free at home than any other in Europe. The temper of debate in the Commons was bold and sometimes turbulent; sometimes incurring rebuke from her Majesty for the temper displayed; but her fidelity to Protestantism reconciled them to her arbitrary exercise of civil power, and the rebellion was postponed, because the religious element in the movement was contented with her Protestantism. She never married. No descendant of Henry VIII. could succeed her. The heir-apparent to the throne was Mary Stuart of Scotland, � a bigoted papist, who had drawn from her mother's breast the spirit of continental despotism.

A successful rebellion in Scotland had made Mary fly to the protection of her cousin. Queen of England. It is needless to go into the facts which preceded and attended

the trial of the unfortunate refugee. No doubt a hard measure of justice was accorded her in the trial to which she was subjected, but when her head fell from the block the English people were reconciled to the result, because it saved them from a civil and religious convulsion, which must have succeeded her accession to the throne. It is not too much to say that the pronounced loyalty of Elizabeth to the Reformation suppressed all revolutionary movements during her reign, and left it for the fated house of Stuart to meet with death and banishment the verdict of the English people against the unlimited prerogatives of the crown and the religion of Rome.

§ 87. In 1603 James VI. of Scotland, son of Queen Mary, succeeded to the throne of England as James I., and thus through the union of the people of the two countries under one king brought them into close sympathy in the struggles of the era.

"The Presbyterian clergy," says Mr. Hallam, "individually and collectively, displayed the intrepid, haughty and untractable spirit of the English Puritans."¹ The Puritan was generally independent, but there was great uniformity of creed between the Scotch Presbyterian and the English Puritan; they were alike in their abhorrence of papacy, and of any headship in the Church but that of Christ. The action, therefore, of the king was watched with equal jealousy on either side of the Tweed, by the Covenanters and the Puritans. Any royal blow against one was felt by the other, and a revolt by either against the arbitrary conduct of the king in any religious matter would be aided by the other.

Besides, neither Puritan nor Covenanter ever had much faith in the sincere Protestantism of the son of Mary, Queen of Scots. Accordingly a spirit of proud and turbulent inquiry into the conduct of his Majesty marked the annals of his reign.

James I. was a learned pedant, lacking in boldness and strength of character. It is not, therefore, strange, that

when in the place of a great woman, with the courage which feared nothing and a tact which successfully and skilfully avoided rupture, the Commons came into contact with a garrulous pedagogue, � who fain would wound, was yet afraid to strike, � they should assume such an air that James said, when their committee waited on him: "Set twelve chairs for these twelve kings!" Nor is it strange that the Commons, who had emerged from the century of the Tudor dynasty with increased power and influence, should look upon this alien king, with his continental fancies of despotic rule, drawn from the House of Guise with his mother's blood, � should look upon this son of the beheaded Queen as a foe to their liberty, scarcely a friend to their religion, and a king educated in views hostile to their constitutional policy.

§ 88. Charles I. succeeded to the throne in 1625. He was an abler man than his father; had more nerve, more moral force. He had been educated and believed in the jus divinum regum, He knew nothing of the true spirit of Magna Carta, and scarcely concealed his contempt for it. He was an alien to the race which for ten centuries had maintained its traditional liberty in this land he was called to rule � a race which had held with tenacity to its institutions, even against the Norman conqueror. Meantime it had imbibed Bible teachings from Wycliffe and his followers, and was decided in opposition to the papal power. Charles derided the doctrines of personal liberty � the sacredness of property under Magna Carta, and claimed the prerogative of taxation in some respects against the established authority of the Commons. He resorted to many devices for raising money without resort to the Commons.

The controversy between the Crown and the Commons culminated in the Parliament of 1628. The Commons in that year presented to the king the celebrated petition of right, in which they stated, with precision and boldness, the controverted questions between prerogative and liberty � between the royal power and that of the people. The famous document recited the statute "De Tallagio non Concedendo,"

and the statute of the 25th year of Edward III., against compulsory loans; the great 39th Chapter of Magna Carta, and the confirmation of it by statute in the 28th of Edward III., and then recited that the king had, in violation of these fundamental statutes, imprisoned men without warrant of law; tried and executed others by court-martial, and had compelled loans from the people, and punished those who refused, contrary to the principles of the Constitution. The petition then prayed his Majesty that it should be declared that no gift, loan or benevolence, tax, or such like charge, should be compelled, without the common consent by act of Parliament; and that no freeman should be imprisoned or detained contrary to Magna Carta; that the commissions for proceeding by martial law be revoked and annulled, and. that none other of like nature may thereafter issue; that these established rights and liberties of the people should be firmly established, and that no previous acts of the crown should be regarded as a precedent. The king, after procrastination and much evasion, answering by an address to both Houses, consented to the bill in the usual form of royal approval.

Further controversy occurred in reference to what was known as the "tonnage and poundage impost." The king claimed the right to impose these taxes without consent of Parliament, and, pending the dispute in respect thereto, prorogued, and finally dissolved, Parliament. During this session a religious controversy arose between the king and the Commons, which intensified the bitterness of the dissension. The king substantially declared, after the dissolution, to govern without calling the Parliament together; committed prominent men, members of the House, to the tower; discarded the principles of the Petition of Right, to which he had assented, and resorted to unlawful methods for raising revenue.

One of these methods was the levying of a tax called "ship-money" upon the subjects of the kingdom, for building ships of war for the navy. Among those upon whom this tax was levied was John Hampden of Buckinghamshire. The levy

upon him was the trifling sum of twenty shillings. Hampden resisted it, and appealed to the courts to relieve him, on the

ground of its illegality. The case was heard in the Court of Exchequer before all the judges. A judiciary dependent for its tenure of office upon the Crown decided in favor of the

tax, and it was enforced. The proceedings in the case are summarized by Hallam,¹ and are fully reported in State Trials.² This was in 1636. In the language of Mr. Burke in his speech on American taxation in 1774: "The feelings of the colonies were formerly the feelings of Great Britain. Theirs were formerly the feelings of Mr. Hampden, when called upon for the payment of twenty shillings. Would twenty shillings have ruined Mr. Hampden's fortune? No! but the payment of half twenty shillings, on the principle it was demanded, would have made him a slave!"

The issue thus joined between the crown and the people upon the question of the tax power, which, as we have seen, had been settled for three centuries, was decided by the

judiciary in favor of the crown. The Commons dissolved had no opportunity to protest, and the king refused to call them. The subdued sentiment of resistance had no vent, but it became the more powerful for that reason.

§ 89. In 1637, Charles found men, women and children in revolt for Christ as the head of the Church, under the "Solemn League and Covenant" of the Scotch reformers. Multitudes, under the name of Covenanters, were assembled everywhere in Scotland in armed resistance to the headship of the king in the Church of Christ. Charles raised an English army to put down the Scotch uprising. The Puritan soldier, in sight of the banner of the Covenanters, refused to aid or do his master's bidding, and the royal power was paralyzed. Meanwhile the animosity of the people to the throne, engendered by the unlawful exercise of the power of taxation and by the illegal arrest of those who refused submission

to royal demands, and by the policy of persecution employed against the Puritans of England, made the tide of discontent so high that rebellion was imminent. The king, during more than ten years in which no parliament sat in England, had exhausted every means of raising money for his purposes, and was compelled at last, very reluctantly, to call the Parliament in April, 1640. This Parliament was not inclined to consider measures; refused to grant a supply of money to the crown until the manifold abuse in Church and State had been considered and acted upon. The king demanded subsidies, the Commons refused until the grievances were redressed. The king dissolved the parliament in May, 1640. But the popular voice could no longer be suppressed. Peers and citizens demanded the recall of the parliament. The English army, disaffected and undisciplined, retreated before the Scotch. Negotiations with the latter became inevitable.¹This celebrated parliament, known as the "Long Parliament," met in November, 1640, with a stern purpose to settle, upon foundations solid and permanent, the great questions of constitutional law which Charles for fifteen years had trampled under foot. The great Triennial Bill for parliaments, a bill declaring "ship money" illegal, and annulling the judgment against Mr. Hampden; an act asserting the ancient and indubitable right of taxation by the Parliament; the abolition of the Star Chamber; the denial of the right of the king to intervene during the consideration of a bill, with any suggestion, as a breach of their privilege, � these were the principal acts in the beginning of this Parliament.

Along with these was decided action taken in reference to ecclesiastical matters. The Commons were disposed to press their reform to extreme lengths, and even to trench upon the unquestioned prerogative of the crown. The king, driven to desperation, entered the House of Commons and attempted to seize five of its members, of whom Mr. Hampden was one, on the charge of treason. This precipitated the rebellion.

Charles, by prerogative, had the command of the army and would not surrender it. The issue between the Crown and the Commons was too serious to end otherwise than in civil strife. The war ended on the 30th of January, 1649, in the execution of the king. Immediately after the death of the king the dominant party in the House of Commons abolished the monarchy and the House of Lords, and established the Commonwealth. The House had been largely under the dictation of the army, and its members had so far decreased that it gained in history the title of the "Rump Parliament." It was officially dissolved by Cromwell, with soldiers at his back, but the Protectorate of Cromwell fell and ceased at his death in September, 1658.

In a few years the confusion in the kingdom between the parties contending for power resulted in the restoration of the monarchy, in the person of Charles II., in 1660. This result followed naturally from the forcible overthrow of the checks and balances of the original system of government. The unification of all power in the single House of Commons gave ample opportunity for the oppression of the classes not represented in it. It was despotism by a unified democracy, which found its natural representative in a military chieftain, and thus the swing of the pendulum from uncontrolled democratic power to the despotism of the protectorate was inevitable. It was not surprising but natural, therefore, that the diverse social elements of the kingdom sought to restrict the ancient system of government, based upon the three estates of the realm � king, lords and commons.

The reign of Charles II. was one in which the monarchy of Charles I. was not restored. That absolute monarchy fell forever with its beheaded chief. The "Royal Image," at one time, but falsely, attributed to Charles I., in the powerful vindication of the people of England by John Milton, in "The Iconoclast," met its final overthrow. The monarchy was restored by Charles II., but shorn of its continental preroga-

tives, and subject to the foundation principles of Magna Carta and the Petition of Right.

It is true that much in the administration of Charles II. was arbitrary and adverse to the principles of British liberty; but the famous habeas corpus act � the shield of personal liberty � was passed nine years after the restoration, and the power of the Commons in matters of taxation and of the conduct of the government was no longer disputed by the prerogative. The excesses of the parliamentary government, and of the commonwealth and the protectorate, produced a strong reaction against the liberal principles of Mr. Hampden and the doctrines and habits of the puritans. But these still survived, awaiting the opportunity for renewed assertion and for ultimate triumph. Popular outbreak against the restored royal power was perhaps prevented by the insincere profession of the reformed faith by the king; insincere, because in his last moments he professed the faith of the Church of Rome and received its last rites.

§ 90. James II. succeeded him in 1685, � a sincere Papist by profession as well as creed, and a genuine Stuart in his belief in despotism. But it must be observed that the element of opposition to the prerogative, which had, for more than a century, been potent in English history, reared again its head against the prerogative of James II. The religious consciences of the reformers of England were roused to intensify the opposition of the mere civilian to the authority of the crown in the person of one who was Papist, as well as despot in his principles. James showed tact and skill in the management of his affairs at this crisis.

The "test act," passed in the time of Charles II., had equally excluded Catholics and dissenters from office. James, in order to open the official door to Papists, issued a proclamation, by which he proposed to dispense with the "test act" as to all who were excluded from office thereby. The terms of his proclamation would have made all offices in the kingdom accessible to Papists as well as dissenters. He conceived that his proposition for dispensation would thus

conciliate the dissenters, whom he would never appoint to office, and do away with the exclusion of Papists, whom he would be disposed always to appoint. The proposal was an adroit one, and was received by many of the people of England as an indication of a liberal disposition on the part of the king towards the dissenters. He directed his proclamation to be published by the bishops of the realm to their people. Seven of their number detected the artifice of the king, and by advice of prominent civilians as to the danger and unconstitutionality of this prerogative of dispensing with and suspending laws, and the execution thereof, without the consent of Parliament, refused to publish the proclamation, for which they were persecuted and tried. They were defended by Summers � afterwards Lord Chancellor Summers � and acquitted, and the seal of condemnation was thus put by the verdict of the jury upon the dispensing power claimed by the king.

The popular ferment raised by this and other events induced the king prudently to fly to the continent and abandon the kingdom. Overtures had already been quietly made to the Prince of Orange, who had married Mary, the daughter of the refugee king, looking to his possible succession, in right of his wife, to the throne. The birth of a Prince of Wales a short time before the flight of the king had extinguished the probability of her succession, and as she was a Protestant, the uneasiness of the Protestant people of England of the perpetuation of a popish dynasty upon the throne ripened events for a rupture. The flight of the king greatly relieved the situation, for William was at once invited to England, and there was presented to him and his wife a declaration in writing, on the 18th of February, 1688, in which it was declared, among other things, that King James II. had abdicated the government; and the throne being thereby vacant, the Prince of Orange had caused letters to be written to the Lords, Spiritual and Temporal, and to the counties, boroughs, etc., for the choosing of representatives in parliament to meet at Westminster, in order

to such an establishment as that their religion, laws and liberties might not be subverted.

The Parliament assembled and made a Declaration of Rights, which was afterwards enacted as a Bill of Rights in 1st William and Mary, Session 2.¹ This Bill of Rights declared William and Mary to be King and Queen of England; and the succession to the crown after them. And Section 6 of the said Act declared, "That all and singular the rights and liberties asserted and claimed in the said declaration, are the true, ancient, and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be, and that all and every the particulars aforesaid shall be firmly and strictly holden and observed, as they are expressed in the said declaration; and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come."

This extraordinary declaration of the ancient and indubitable rights and liberties of the people to be perpetuated as binding in all times to come is more than mere legislation, and is like the provision of a permanent and unchangeable constitution. This Parliament not only elected the persons who should fill the throne, but declared the succession thereafter, and furthermore excluded any one in the line of that succession who might be a papist from ascending the throne or holding it, and absolving their people from any allegiance to any such.

In the 12th and 13th of William III. the act of settlement prescribed the succession to the crown after the death of William and Mary, and Anne, the sister of Mary, without issue of their bodies, and by the rule of succession thus prescribed the throne has been filled ever since to this day. So that for two hundred years, under the acts of Parliament in 1688 to 1689, the throne has been filled by appointment of the Parliament of England, and it will be seen by reference

to the Bill of Rights¹ that the liberties of the people and their power in the House of Commons was prescribed as a fixed part of the British Constitution at that time. So that the constitutional monarchy of England may be said to have received its full and final confirmation at the accession of William and Mary, by the action of all the estates of the realm, by the de facto Body-politic of England.

Since that period, prerogative has never dared to invade the domain of popular power in the matter of taxation or personal liberty as exercised by the House of Commons, and as defended by the independent judiciary, for since the third year of William and Mary the judicial tenure has been held, not during the pleasure of the crown, but during good behavior, or substantially for life.

§ 91. This historical sketch of the salient facts in the ten centuries prior to the Revolution of 1688 to 1089, and especially of the four centuries from the reign of Edward I., will serve to show how through the fierce antagonisms of two powerful races; the jealous rivalry of two systems of jurisprudence; the conscientious conflicts of two forms of religious creeds � that of Rome and of the Reformation; the social strife of Norman caste with Saxon people; the political struggles between the prerogative of an alien dynasty and the

ancient liberties of the people through a representative organization; the three estates of the realm, united in the political organism of Edward I., rude and not precisely defined, emerged in the Convention Parliament of 1688 and 1689, "assembled in a full and free representation of this Nation,'' and declared in the Bill of Rights their ancient rights and liberties, and established the constitutional monarchy of England, in which the three estates were in distinct organisms clothed with independent political authority to protect and conserve the rights of each, the prerogative of caste and the liberties of the people, as they were prescribed and defined by the Declaration of Rights, enacted into law by the Parliament composed of the three estates of the realm � the ¹ See Appendix.

King, Lords and Commons. This result gathered together the historic institutions of the past, and made them stand together (con-stituo) as the written and permanent Constitution for the British realm forever. This is the Institutional Constitution of England � institutional in its principles and in its "subtle organism, which has proceeded from progressive history;"^l and a Constitution in that the institutions proceeding from progressive history were made to stand together, as the written compact between the three estates of the realm, by the Bill of Rights enacted into fundamental law by the King, Lords and Commons in 1688 and 1689.

This Constitution was born of conflict. Its pathway in progressive history is marked by bloody strife. Power held the vantage ground of liberty; but liberty, by brave and persistent energy, achieved its organic place in the political mechanism; and now not only maintains its ancient right, but dictates the policy and secures the destiny of the British Empire.²

§ 92. It will therefore be understood that the monarchy which fell with the head of Charles I. from the block in 1649 was not restored with Charles II. in 1660. The old monarchy had its traditions of prerogative; its Star Chamber; its denial of Magna Carta, and its contest with the House of Commons as to taxation. That ancient system was buried beyond resurrection in 1649. Charles II. tried reaction, menaced despotism, but failed. James II., by the restoration of papal influence and despotic rule, made reaction impossible.

A brief epitome of the causes for the Revolution in the Declaration of Rights may now be given:

(a) Denying the suspending and dispensing power by the crown as to laws passed by parliament. This, if permitted,

would virtually have enabled the king, by his sole act, to repeal the legislative act of the three estates of the realm. (b) No taxation but by Parliament.

(e) Freedom of elections by the people from the control of the crown and nobility.

(f) Freedom of speech and of debate in Parliament without question or prosecution in any court.

(g) Declaration against excessive bail, excessive fines and cruel and unusual punishment.

(j) The election of William and Mary and declaration of succession to the crown.

(k) The permanent exclusion from the crown of any successor who did not abjure the Papacy.

The crown had immemorially exercised its powers through, the privy council. After the accession of William and Mary a select body of Councillors from the Privy Council constituted the cabinet of the king.

About this period two parties were formed in England, representing distinct lines of policy based on diverse views of the Constitution of the Kingdom. These parties went under the names of Whig and Tory. The Bill of Rights, while clear in its statement of general principles, necessarily left much, as all such papers do, to interpretation. The Tory party tended to interpret the Constitution in the interest of royal prerogative � the Whig party, in the interest of popular liberty and of the power of the House of Commons.

The power of the House of Commons, while in theory that House was the representative of the people, was very much impaired by the influence of the crown and nobility, in the election of a large proportion of the members of that House.

This, as already stated, was aggravated by the distribution of power among the counties and boroughs of England. The House of Tudor, it is alleged, created a large number of boroughs, of very small population, over which the resident nobility and the crown had large and sometimes paramount influence. These boroughs obtained the name of "Rotten Boroughs," because, while professing to be the representatives of the people, they were in reality, by reason of the influence of the crown and nobility, not representatives of popular opinion, but representatives of the crown and the nobility in the popular House.¹ It was reckoned that in the first parliament of George I., 232 members of the House had places, pensions or titles; besides these, a great many brothers and heirs-apparent to the nobility, to a number of not less than 50, making in all 282, constituting in reality a majority of the House. It was well asked by Sir James Mackintosh: "Who can, without indignation, hear the House of Commons of England called a popular representative body?"²

Such a state of things necessarily disturbed the balances of the Constitution and made the lung and House of Lords dominate the will of the House of Commons. This state of things produced a deep feeling among the people and the friends of liberty in England in favor of reform, which would make the House of Commons the real representative of the people, and free it from the control of caste. This finally brought about the passage of the celebrated Reform Bill in 1832, which was so radical in its character as to change essentially the distribution of the organic power between the three estates and give to the House of Commons the character of a true and independent representative of the popular will.

It is said that before the passage of that act 56 "rotten boroughs" elected 111 members, each representing its 2,000

people, and 32 "rotten boroughs" sent 32 members, each representing less than 4,000 people; so that at that time 88 "rotten boroughs" elected 143 members, representing 360,000 people, or nearly one-third of the House elected by one-fiftieth of the entire population.

The Reform Bill, passed in 1832, was backed by the powerful influence of the king, William IV. The Bill largely extended the right of suffrage, and demolished the "rotten boroughs" and equalized representation in a large degree in proportion to the population of the shires and boroughs. It may as well be mentioned that but for the royal advocacy of this Bill it would probably have been defeated in the House of Lords, for the members of that House saw in its passage the demolition of their influence in controlling the action of the House of Commons. But the king threatened that if the House of Lords, as it was then constituted, should reject the Bill, he would insure its passage by the appointment of a sufficient number of new peers favorable to the Bill to overcome the opposition in the House of Lords. This menace of the advent of mushroom aristocracy among the ancient nobility of the kingdom made the Lords select the alternative in the dilemma presented in passing the Bill. This Reform Bill was followed after many years by the

reform bill of 1807, which largely extended suffrage and increased the popular character of the House of Commons. It is said that prior to this act of 1867 there were 1,500,000 voters composing the voting constituency of the 1 louse of Commons. Since that Act the number of suffragans has increased to 3,000,000 � just double.

It will therefore be perceived that while the Constitution of 1788-89 in form established the House of Commons as the free representative of the people of the realm, it did not do so fully and in reality; but liberty, which demanded popular power, moved with unfaltering courage to obtain the passage of these bills which should make the House of Commons a real representative of the people of Great Britain.

§ 93. An analysis of the constitutional Monarchy of England in its present state will now be attempted.

First. The Legislature of the Kingdom consists of King, Lords and Commons. Of these we will consider first the House of Commons and its powers.

(a) The power of taxation in this House is clear, initiatory and supreme. All money bills must originate in the House of Commons. By money bills are meant bills laying taxes and also bills appropriating money. So that no bill imposing taxes of any kind, and no bill appropriating money of any kind, can become a law unless it has been first passed in the House of Commons.

It may be well to note that in this respect the provision of the Constitution of the United States differs from the English Constitution. It provides¹ that all bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur in amendments as on other bills. As will be hereafter shown, this clause of our Constitution does not include bills for appropriating revenue, although that view has been maintained with great earnestness by many of our public men.

(b) In all other legislation the House of Commons has coordinate but not originating power. Nothing can be law in England unless it has the concurrence of both Houses and the sanction of the crown. All legislation other than money bills may originate in the House of Lords.

(c) The power of the House of Commons to impeach the officers of the crown is unquestionable, and upon such impeachment no royal pardon can be pleaded. This last, which had been controverted, was established by the act of 12th and 13th William III., chapter 2.

(d) By the principles of the government, a vote by the House of Commons of want of confidence in the ministry will cause its resignation, or a dissolution of parliament and an appeal to the people, so that the cabinet ministers of the crown become indirectly responsible to the House of Commons.

The origin of this power, which has no direct provision in the Bill of Rights, or any other document in English history, is in the exclusive and supreme power of the House of Commons to grant supplies to the crown. The House of Commons has from time immemorial, as we have seen, attached to their grants of supplies the precondition of a redress of grievances, and then held that there is no grievance which needs more immediate redress than that the crown should be under the advice of evil and wicked councilors.

When, therefore, they vote a want of confidence in the ministry of the crown, it is an intimation which is to be understood from "progressive history" that supplies will be denied until the grievances are redressed; in other words, that money will not be supplied to the crown to be disposed of by a ministry in whom the House of Commons has no faith. It has therefore come to pass that a vote of want of confidence is the death of the ministry, unless by appeal to a new House of Commons, to be elected by a fresh vote of the people, the ministry should be sustained against the lack of confidence manifested by the old House of Commons.

(e) Ministers are Members of Parliament, and when appointed to the Cabinet, if at the time members, they must resign and be re-elected. They cannot represent the people after taking office from the crown without the sanction of their constituents. Ministers, as members, are open to question in the House as to matters connected with their ministerial duties. The responsibility of ministers to the House is enforced, as has been said, by the power of the House to refuse supplies if not yielded to.

Mr. Bagehot, in his "English Constitution," has said that the House has five functions: "the elective," that is, that it substantially elects and deposes the real executive of the Nation, with his ministry. Its "expressive" or declaring function is to express the mind of the English people. Its third and fourth functions are what he calls the "teach-

ing and informing functions;" that is, through debates and reports on political matters, and on subjects of popular concern. And then there is the "function of legislation."

The use of the army by the crown was a disturbing influence at one time in the election of members of the House of Commons. This gave rise to the Act of 8th George II., in 1735, by which it was enacted "that the troops shall be removed during the time of an election out of the place where the election is directed to be held, and so to continue during the time of such election." And in 1741, where an officer had violated this statute, it was resolved that it was a "manifest violation of the freedom of elections and an open defiance of the laws and Constitution of the Kingdom." The persons concerned in this violation were ordered before the House and received, on their knees, a very severe reprimand from the Speaker.¹

§ 94. Let us now consider the House of Lords. The House of Lords is composed of the peers and the ecclesiastics. Peers by inheritance and peers by new creation. Peers are of different grades: duke, marquis, earl, viscount, and baron. The Spiritual Lords who sit in the House are two Archbishops and twenty-four Bishops.² Besides these English peers, sixteen representative Scottish peers are elected for each Parliament by members of their own order; and twenty-eight peers from Ireland are elected for life by their fellow Irish nobles.³ Besides these secular peers there are twenty-four bishops entitled to seats in that House.

The House of Lords is a co-equal branch of the legislative department, except that it cannot originate money bills. For a long period of time, until within the last year, the House of Lords never rejected a bill upon which the House of Commons insisted. It proposed amendments to all bills where deemed proper, and, in the Irish Disestablishment Bill in 1869-70, it insisted upon its amendment, which was

carried. At the end of Mr. Gladstone's late administration, it rejected his Home Rule Bill by an overwhelming vote, and with boldness, not to say audacity of temper; and it also rejected the Employer's Liability Bill connected with the Irish policy. The feeling that was excited by this action of the House of Lords rose to the point of agitating the question of its longer continuance as a co-equal branch of the legislature, but a powerful reaction has taken place against this radical idea., which resulted in a change of ministration upon a dissolution of Parliament and an appeal to the people, and on that appeal the people may be said to have suppressed the agitation looking to so radical a change. Since the Reform Bill of 1833, and the increased power of the House of Commons resulting therefrom, the House of Lords have had less influence in the active law-making of the Kingdom, and is, in the main, reduced to a criticising and revising body. The positive force in the direction of legislation is the House of Commons; the House of Lords revises and amends, but does not initiate. It stays and suspends action � calls a halt upon the proposals of the House of Commons; but except in the cases above mentioned has not, for half a century, obstructed the passage of any measure upon which the House of Commons insisted.¹

It must be understood that the House of Lords has not the power which the House of Commons has, by its disapproval of the action of the ministry, to cause their resignations. This extraordinary function belongs only to the House of Commons. It is needless to cite any examples of this, except the rejection by the House of Lords of Mr. Gladstone's bill for Home Rule in Ireland. This did not cause the resignation of the ministry, because the action of the ministry was sanctioned by the House of Commons. The power of the House of Lords to amend tax bills has been denied by the House of Commons, and cases have occurred where, upon such amendments being made, which the House of Commons did not dissent from, the Commons have chosen ¹ Bagehot's English Constitution, ch. 4.

rather to introduce a new bill, including the proposed amendment of the House of Lords, than to permit their own original bill to be amended by that House.

The House of Lords in 1702 passed a resolution which it made one of its standing rules, that the annexing any clause to a bill of aid or supplies is unparliamentary, and tends to destroy the Constitution of this Government.¹ This applies, however, only to a clause which is not germane to the bill of supply.

(a) The independence of the Members of Parliament during the sessions of the body is secured.

(b) Tax bills and appropriation bills are usually only for a year, so that, if the tax or appropriation be not agreeable to the popular will, the House of Commons responds and repeals, and the House of Lords will not defeat the repealing act. Indeed, if any tax already imposed becomes distasteful to public sentiment, the House of Commons would respond by repeal, and neither the House of Lords nor King would obstruct the repeal. The King would not, because his ministry would approve the repeal, or, if it did not, would be compelled to resign upon a vote of the House of Commons against their maintenance of the tax; so that it may be taken as absolutely true that all taxes and appropriations of money, whether only for a year or for a longer period, will be repealed at the expressed will of the House of Commons. At this point it is proper to note that the government of England is more sensitively responsive to the popular will on a question of taxation or appropriation than the Federal Government is in this country. A tax bill of any kind passed by Congress, and approved by the President, cannot be repealed upon the declared wish of the House of Representatives, but may be perpetuated, however much the popular discontent, until the independent wills of the House, Senate and President concur in the repeal.

(c) Appropriations for the support of the army and navy are for a year only. At the close of the year for which they are made, the army and navy are without money to support them unless a new appropriation be made. The King, without money to support either, is powerless to use them if the House of Commons, considering them dangerous to liberty, shall refuse a re-appropriation, so that by the money power the royal power of the sword is paralyzed at the will of the House of Commons in refusing the sinews for their support by a re-appropriation.

(d) But the control of the House of Commons is even greater than this. Non-appropriation of money would leave the army and navy in complete organization, but another custom of the kingdom more effectually secures the people against a standing army or navy. On this subject a quotation from Mr. Hallam's work is all that is necessary, with the remark that the "mutiny bill" to which he refers was first passed in the reign of William and Mary, just after the Revolution of 1688-89, by the Convention Parliament.¹

"This annual session of Parliament was rendered necessary, in the first place, by the strict appropriation of the revenue according to votes of supply. It was secured, next, by passing the Mutiny Bill, under which the army is held together, and subjected to military discipline, for a short term, seldom or never exceeding twelve months. These are the two effectual securities against military power: that no pay can be issued to the troops without the previous authorization by the Commons in a Committee of supply, and by both Houses in an act of appropriation; and that no officer or soldier can be punished for disobedience, nor any court-martial held, without the annual re-enactment of the Mutiny Bill. Thus it is strictly true that, if the king were not to summon Parliament every year, his army would cease to have a legal existence, and the refusal of either House to concur in the Mutiny Bill would at once wrest the sword out of his grasp. By the Bill of Rights, it is declared unlawful ¹1 Blackstone, Bk. I, pp. 211-12.

to keep any forces in time of peace without consent of Parliament. This consent, by an invariable and wholesome usage, is given only from year to year; and its necessity may be considered, perhaps, the most powerful of those causes which have transferred so much even of the executive power into the management of the two Houses of Parliament."¹ It will thus be seen that the Mutiny Bill expires at the end of each year, and the army and navy disband, if Parliament does not repass the Mutiny Bill, for the king can hold no soldier or sailor subject to military law, and this right of person is vindicated against the crown by the great writ of Habeas Corpus, of which we will now speak.

(e) The Habeas Corpus Act, in its final form, was passed in the 31st year of Charles II.² Mr. Hallam shows that this beneficent enactment introduced no new principle, but was only a more definite and well digested remedy against illegal imprisonment in behalf of the citizens, by requiring a judicial inquiry into the cause and sufficiency of the commitment and holding the citizen in custody.

And it is important here to note the fact that this writ under this act is perpetual and cannot be suspended or taken away by any other power than an act of Parliament. The king cannot suspend the privilege of this writ, because, being a statute of Parliament, the provision of the Bill of Rights of 1689 declared that "the power of suspension of laws, or dispensing with them, or the execution of them by regal authority and without the consent of Parliament, is illegal." So that it comes to pass that, by the expiration of the term of the annual Mutiny Bill, every soldier and sailor, by the judicial power, will be released from royal authority, unless the Parliament itself shall suspend or repeal the operation of the Habeas Corpus Act.

(f) Parliament at one time was made triennial in its term by the Statute of 6th William and Mary, chapter 2, but the

Parliament now expires by limitation in seven years, by Statute of 1 George I., St. 2, c. 38.¹ It is obvious from what has been said that the fiscal power, which was settled in the reign of Edward I., is the great lever in the hands of the House of Commons by which royal misrule is prevented or

In ancient republics a caste proposed legislation which the people might reject or adopt, but in England the people initiate all action through the House of Commons in respect to taxation or appropriation, and must concur in the passage of all bills before they can become law.

§ 96. The executive power in the English government is vested in the crown, and includes very large and dangerous powers. The prerogatives of the crown will now be mentioned.

(e) The king holds by hereditary title, but subject to limitation by Parliament.²

This limitation upon the hereditary title of the crown by act of Parliament had been often exercised, as Blackstone shows, but was vindicated as a settled principle of the Constitution by the Bill of Rights of 1689, and the Act of Settlement of 12th and 13th William III., in 1700.³

The House of Lords, by statute in the 1st of Edward IV., Chapter 2,⁴ claimed to hold the crown de jure, and that the holding by the kings of the House of Lancaster was only de facto, or in the language of the statute, "In dede and not of ryght!" Despite this hereditary title it was from time immemorial asserted that the king was sub deo et sub lege.⁵

De Lolme in his celebrated work has attempted to vindicate the British Constitution as an hereditary monarchy by conceding that every subject of the kingdom, and Parliament itself, is intensely interested in checking and jealously watching the king lest he should stretch his prerogative beyond proper limits, and the more so because no subject can ever fill the throne. This is ingenious, but can hardly justify a constitution which puts upon the throne a dangerous person with hereditary title, a perpetual holding, irresponsible in the exercise of power, merely because all of these demand strict vigilance on the part of his subjects. It would seem logical that the best cure for such a danger would be in removing it or preventing its existence and not to create it as a means of stimulating its power.

He maintains, however, that as the king has all that he can want, he will not be disposed to raise popular tumult by trying to increase his prerogative. His life is easy and luxurious with a limited prerogative, and may be disturbed by popular tumults if he should attempt to increase it. This may be the case where the king is a good-natured, unambitious man, inclined to do no wrong against the liberties of his subjects, but the experience of mankind has not justified the hope that the security of liberty will be found in the excellent disposition of hereditary kings. And in the glowing eulogy upon the English monarch which this great author has pronounced, it will be found that the safety of the liberties of the people under the hereditary monarchy in England is due, not to reliance upon his personal disposition, but upon the paralysis of his evil purposes through the checks upon his prerogative exercised by the House of Commons � the representative of the people.¹

De Lolme has stated the case very strongly in the following language: "The king of England, therefore, has the prerogative of commanding armies and equipping fleets; but without the concurrence of his parliament he cannot maintain them. He can bestow places and employments, but without his par-

¹ 1 Blackstone, p. 189. ² Blackstone, Bk. I, p. 210. ³ Stubbs' Select Charters, pp. 523, 528.

liaments he cannot pay for the salaries attending on them. He can declare war, but without his parliament it is impossible for him to carry it on. In a word, the royal prerogative, destitute as it is of the power of imposing taxes, is like a vast body, which cannot of itself accomplish its motions; or, if you please, it is like a ship completely equipped, but from which the Parliament can at pleasure draw oft the water, and leave it aground � and also set it afloat again by granting subsidies."^l

Mr. Bagehot, in his second chapter on the monarchy,² gives some very ingenious reasons in favor of the hereditary monarchy, in which he concludes that the monarch is the representative of the pomp and dignity of the government, stands at the head of its society, is the head of its morality, is a quiet councilor with a long experience from which he may make suggestions to his ministers, with power to dissolve the Parliament, and thus appeal from the old to the new representative of the people, and that if disposed not to make his prerogative trench upon the liberties of the people, he may pass a comfortable life himself, without much detriment to the public interest; but he asks very pointedly:

"But can we expect such a king, or, for that is the material point, can we expect a lineal series of such kings? Every one has heard the reply of the Emperor Alexander to Madame de Stael, who favored him with a declamation in praise of beneficent despotism: 'Yes, Madame, but it is only a happy accident.' He well knew that the great abilities and the good intentions necessary to make an efficient and good despot never were continuously combined in any line of rulers. He knew that they were far out of reach of hereditary human nature. Can it be said that the characteristic qualities of a constitutional monarch are more within its reach? I am afraid it cannot....

"If we look at history, we shall find that it is only during the period of the present reign that in England the

"An ordinary idle king on a constitutional throne will leave no mark on his time; he will do little good and as little harm; the royal form of cabinet government will work in his time pretty much as the unroyal. The addition of a cypher will not matter though it take precedence of significant figures. But corruptio optima pessima....

"We have an awful instance of the dangers of constitutional royalty. We have had the case of a meddling maniac. During great part of his life George III.'s reason was half upset by every crisis. Throughout his life he had an obstinacy akin to that of insanity."¹

§ 97. The king's cabinet is a body of men in charge of the different departments of the government, selected by the crown and removable at the king's pleasure. This cabinet, though it has the pride of executive rank, holds office under a sense of popular responsibility which makes the cabinet represent largely the popular will. The relations of the sovereign to his cabinet embrace three rights: the right to be consulted, the right to encourage, and the right to warn.² A wise and sagacious monarch would be likely to leave all else to his respective ministers, and with a long and intelligent experience he could use these powers with great effect upon his ministry. The late Prince Albert, it is said, gained great power in precisely this way.

Cabinet ministers, being also members of one or the other Houses of Parliament, are leaders of their respective parties in these bodies; are imbued with the same general sentiments, and thus feel, as a member of the executive, the impulses which operate upon the legislative branch of the government. The fact that these ministers must not only be competent to direct the affairs of their respective departments, but be ready and act in debate upon a question which arises before either House, makes a rare combination of

practical statesmanship, with skill as a debater, necessary for the cabinet of the king. The premier of the administration ought to be, and generally is, not only a comprehensive statesman, but a skilful debater and with tact for parliamentary leadership.

The history of the past century will show that these requisites have combined in a large proportion in the public men who, as premiers in the cabinet of the king, have directed the destinies of the empire.

It is proper to add that, as the House of Commons, through its initiatory and dominating influence in the matter of grants of money, has such control over the tenure of office of the ministers of the crown that a vote of want of confidence, or a defeat of a principal measure of the administration in that House, makes it impossible for the ministry to hold office longer in co-existence with that House of Commons; accordingly, on the happening of either of these events, the ministry resign or advise the king to dissolve the Parliament, on an appeal to the people from the action of the then House of Commons adverse to their continuance in office. If the election for the new House results in the return of a majority in favor of the ministry they retain office; if the majority be adverse, the ministry resign, even before the meeting of Parliament. Examples of both of these have occurred within the last five years in England. Lord Salisbury dissolved Parliament and appealed to the people, which was adverse to him, whereupon he at once resigned and Mr. Gladstone formed a cabinet which made the new House. Within the last two years, Lord Rosebery did the same, and upon the returns of the election resigned office, and was succeeded by Lord Salisbury.

It is thus seen that at this time the absolute responsibility of the ministers of the crown to the expressed will of the House of Commons is as well established as if it were a provision of a written constitution. This results, as has been fully indicated heretofore, from the possession of the money power by the House of Commons as far back as the reign

of Edward I. To these money bills, as we have seen, they joined petitions for the redress of grievances, and afterwards, in the reign of Henry IV., declared they would come to no resolution in regard to subsidies until the king had given a precise answer to their petitions. Afterwards, when abuses of power had taken place, they made grievances and supplies, to use the language of Sir Thomas Wentworth, go hand in hand, a policy which always produced redress of grievances, "and in general, when a bill, in consequence of its being judged by the Commons essential to the public welfare, has been joined by them to a money bill, it has seldom failed to pass in that agreeable company."¹

At this day the ministry, therefore, must be in accord with the House of Commons, or it will be in the dilemma of immediate resignation or dissolution of Parliament. The dissolution of Parliament is called by Mr. Bagehot the "regulator in the machinery." It appeals from popular sentiment represented by an old House, to the popular sentiment which will elect a new one. Whatever the new one so elected decides, is final on that appeal. It is the fresh expression of popular will. The ultimate authority in the English Constitution is a newly elected House of Commons, � it can despotically and finally resolve.²

If the House of Commons is bent upon the passage of a measure to which the House of Lords strongly objects, as in the case of the Reform Bill of 1832, the ministry, who are necessarily in accord with the House, will advise the king to appoint new peers in sufficient number to overcome the opposition of the Lords. This, Mr. Bagehot calls the "safety-valve of the Constitution."³

§ 98. We can now see in detail how the House of Commons can completely checkmate the great prerogatives of the Crown to which we have referred.

war, which the Commons oppose, and he declares it without the consent of his ministers. As he cannot make war without money, the Commons, by refusing to repass the Mutiny Bill, would disband his army and navy within a year, and, by refusal to appropriate money for the war, would make the army and navy, before disbanding, absolutely useless. But suppose the ministers of the Crown should press a war to which the Commons were opposed, a vote of want of confidence, which would be the signal of denial of all the sinews of war to the ministry, would compel their resignation and the appointment of a new ministry adverse to war. So that war in form is a prerogative of the king, � in substance it is at the will of the Commons.

Take another: � the king is generalissimo of the army and navy. He wishes to use both in foreign war, or for aggression against the liberties of the people. This will be short-lived; they will end with the expiration of the Mutiny Bill, and will be inoperative for lack of the sinews of war, which Parliament alone can supply. Suppose the king does not desire to make war and the Commons do, for the honor or defense of the nation. The king's reluctance will be overcome by a vote of want of confidence and a change of ministry; or, if he be stubborn, by a refusal of supplies for ordinary purposes, until the king shall declare the war that

Take another prerogative. The king can make peace. Suppose he makes peace when the Commons think the continuance of the war necessary. By the lever of the money power they can dictate the continuance of war, instead of the proposed royal peace; or if the Commons want peace when the king says war, by refusal of the sinews of war they will compel peace. The king has exclusive power of negotiating treaties. This function he performs through his ministry. If the treaty is distasteful to the Commons, the ministry cannot make it. but must resign upon a vote of want of confidence. But they may dictate a treaty to which the Crown and his ministry are parties, by like measure.

Again, if a treaty be made which involves the payment of money to a foreign power, the treaty is of no avail as an obligatory contract on the nation if Parliament refuses to make the appropriation of money. So that the treaty-making power in the appropriation of money is dependent upon the will of the Commons.

Take the veto power: This has not been exercised since 1692, when it was employed by William III.¹ The reason for the failure to make use of it is very obvious. As long as the king was a hereditary executive, independent of the power of Parliament for his title to reign, his veto would have been proper and natural; but since the real executive became his ministers, who held office at the will of the Commons, and whose opposition to the will of the Commons would cause a change of ministry as soon as it was manifested, it is clear that no minister who had approved the passage of the bill could advise the king to interpose the executive veto. The ministry cannot veto their own measure, and if they oppose the bill while pending in the House of Commons, they must surrender their office and give way to a ministry in favor of the measure, and hence the bill could not be vetoed.

It thus appears that the formidable prerogatives of the Crown may be paralyzed by the will of the House of Commons � that body which first sat in a separate chamber in 1295, and which, by the leverage of the money power, has overthrown the despotism of the monarchy and paralyzed every exercise of the prerogative not in accordance with their will. The triumph of the bi-cameral Parliament and of the act "De Tallagio non Concedendo" in the reign of Edward I., after six centuries, is fully assured.

If it be asked, what if the king, with the temper of the ancient monarchy, should undertake to break the chain by which his prerogative is bound and establish its authority against the liberties of the people and the power of the Commons? the answer is, that all the forms of the Constitution and its laws have secured freedom of speech, freedom

of the press, freedom from arrest, the shield of the Habeas Corpus, in the hands of an independent judiciary, and that his efforts of violence would be so flagrantly against right and constitution that the resistance of the people by open rebellion would reinstate the constitutional monarchy and foil the schemes of the usurper. The means of resistance �

the material for armies and navies, and the money to support them � would be in the House of Commons. And if the king should be tempted to despise the resistance of the peopie and hope, by standing armies or otherwise, to overcome it, English history has raised across his pathway the bloody scaffold of Charles I., and the enforced abdication of James II., as a solemn warning against any such attempt. "The power of the people is not when they strike, but when they keep in awe: it is when they can overthrow everything, that they never need to move; Manlius included all in four words, when he said to the people of Rome: 'Ostendite bellum,

§ 99. We have thus far indicated the great influence of the House of Commons, as the representative of the people, in checking the prerogative of the Crown. It is important now to point out what conservative influences exist in the organization of the British government to check the radical tendencies of the popular branch.

First. One of the most potent of these is the patronage of the Crown. He is the source of all official tenure. He appoints the ministry (subject to the power of the House of Commons already referred to), all the judges, and all the officers of the kingdom. When it is considered that each one of these officers is the center of family connections, and that his tenure of office depends upon conserving the government as it is, it will be seen that a large portion of the people of the kingdom will be directly and indirectly under the influence of the Crown, and will tend to conserve the distribution of power between the different departments as established by the Constitution.

Second. The House of Lords, composed of several hundred members, with large landed property, with their tenants and retainers dependent upon them, will have great influence in the election of the House of Commons � an influence which was enormous until the Reform Act of 1832-33, when the "rotten boroughs," almost under the exclusive influence of the Crown and the Lords, were abolished. Besides, the younger members of the families of the peers, and their connections, would be more or less influenced by their conservative views against any radical action which tended to the subversion of the constitutional relation between the three estates of the realm. This is signally manifested to-day in the strong feeling among the people of the kingdom against any action by the Commons looking to the abolition of the House of Lords or the abridgment of its powers. Besides, as the House of Lords is a co-ordinate branch of the legislative department, no such action against their constitutional power could become a law without their separate consent. And so with reference to the Crown. The veto power, which in ordinary legislation, as we have seen, is never exercised, would unquestionably be exercised, if any action to destroy the Crown as a co-ordinate estate of the realm were taken. Against the popular power, therefore, of the House of Commons, there is thrown the influence of caste in the royal family and in the House of Lords, backed up by the band of officials dependent for their living on the Crown, and the retainers, kindred and friends of the Lords.

Third. The Established Church is an influence antagonistic to all radical reform. When we regard the large number of ecclesiastics who hold their living under this establishment, and who are interested, therefore, in conserving the establishment as a part of the constitutional organism of the realm, it will be readily seen that the ecclesiastics will naturally unite with the Lords and the Crown in obstructing any measures of the Commons which would in any degree impair the existing constitutional power of either one of them.

Fourth. The Colonial System, which makes the British kingdom an empire, enlarges very greatly, not only the patronage of the Crown, but its power in conserving the existing state of things as essential to the empire. Besides this, the Colonial System, which is dependent in a large degree upon the continuance of the empire under the Crown, enlarges the interests of the commercial classes in England, who will see, in the conservation of the existing order of things, assurances of these commercial advantages which result from colonial dependents. Perhaps it may be said that in many respects the colonial system is a burden upon England; but there is no question that in the respects to which we have referred it tends largely to maintain the existing Constitution and to obstruct any radical tendencies of the democratic element in the kingdom. These formidable organizations � the King, Lords, Church and Colonial System, with all their relations affecting the entire society of Great Britain � are potent conservators of the kingdom as it is, and against any revolutionary action which would change

The history of Great Britain, especially since the Revolution of 1688-89, has presented to the world a memorable example of the organization of its government upon the basis of three estates of the realm, each so powerful in its influence as to make radical change difficult except by revolution; and, as revolution, as has been said, is the last resort of an oppressed people against tyrannical power, the Crown and nobles have been taught a wise discretion in yielding to the demands of the democratic element where it did not radically subvert the Constitution of the kingdom. The wonderful manner in which reforms in the Constitution, as well as legislative reforms, have triumphed in the last century show that the Crown and the Lords have saved themselves from subversion by yielding to the reasonable and conservative demands of the democratic element. And hence, while revolutions during the last century have been rife upon the Continent, they have been stifled in England without the necessity of armed forces to quell popular commotion.

§ 100. We come now to speak of that department of the British Constitution which is entitled to unstinted praise �

the Judicial Department. This department, which holds the scales of justice in contests between man and man in civil procedure, � between the Crown and the man in criminal procedure. � which at last must interpose the shield of Habeas Corpus and jury trial in behalf of the liberties of the people, assured from Magna Carta down to the present time, is appointed by the Crown, and if dependent on the Crown would be but its instrument for destroying liberty and making prerogative paramount.

The judiciary, as we have seen, held their offices during the pleasure of the Crown prior to the Revolution of 1688-89, when, by the Act of 3d William and Mary, the judges held during good behavior, and could not be removed by the Crown, and could only be removed by impeachment by the House of Commons and conviction by the House of Lords, or upon a vote of the two Houses. This made the judiciary independent of the Crown and independent of the people �

independent of all influences which would disturb the scales of justice. The only exception to this is the case of the Lord Chancellor, who takes the Great Seal with every new ministry and surrenders it with the resignation of the ministry.

The appointment of the judiciary, though nominally by the Crown, is actually by the cabinet, and practically judges are selected according to the rank which they have obtained by merit among their brethren at the bar. The efficiency of

the method by which this merit is recognized by the voice of the bar lies in the appointment of Queen's Counsel, Sergeant, and the like, and by the ministry of each party selecting the chief man of their party at the bar to hold the important offices of Solicitor-General and Attorney-General. When these positions are obtained on the score of conceded merit, they are but the prelude to promotion to the Bench upon the first vacancy that occurs. The men selected for the offices of Solicitor-General and Attorney-General are not only men of large legal ability, but men gifted with pow-

ers of debate on the floor of the House of Commons, to which these officials are generally, if not always, elected. The legal questions which arise in the course of the government, and which become matters for parliamentary inquiry and debate, are left to these two officers for the vindication of the administration in its action.

It is obvious from this outline that the Bench of England is filled with the ablest lawyers, and the experience of the profession will vouch for the fact that the appointment to the Bench by the Crown, through its ministry, has sanctioned the verdict of the profession as to their fitness for the places they fill, and their decisions, on both sides of the Atlantic, are recognized as the deliverances of an able, learned and independent judiciary. Despite occasional criticism upon the decisions of the English courts, the consensus of opinion of the English-speaking profession, on both sides of the Atlantic, as well as elsewhere, is eminently favorable to the judgment just expressed. The appointing power of thy Crown is so controlled by the professional opinion of the

Of course, as Great Britain has no written constitution, which, like our own under the decision of Marbury v. Madison,¹ is paramount to all legislation and all acts of all departments of government, the admirable check which we have under our system to the unconstitutional action of the government does not prevail as against the acts of Parliament, which is composed of King, Lords and Commons. The omnipotence of Parliament makes it not only, in the English conception, the legislative department, but the representative of the three estates of the realm, and therefore as the de facto Body-politic; but wherever the action of any one of these estates of the realm is separate and distinct from that of the Parliament as a whole, the courts have signally avoided such action when it was contrary to the constitution of the kingdom.

The exercise of royal prerogative contrary to Magna Carta was signally defeated by Lord Chief Justice Pratt, in a decision in which the action of a British secretary in ordering the arrest of a citizen without judicial warrant was sternly condemned and annulled. And in the great case of Stockdale v. Hansard¹ the power of the House of Commons to order defamatory matter to be published, with immunity to the publisher because of its order, was signally overthrown by the unanimous judgment of the Court of Queen's Bench in the able judgments of Lord Chief Justice Denman and his associates.

§ 101. The judiciary of England springs from the people, though, as judges, they may be made peers of the realm. The Bench is, of course, furnished from the ranks of the bar, and as no peers, as a matter of habit, ever go to the bar, the bar is filled from the ranks of the people. In their origin, therefore, the Bench will be imbued with sympathies for popular liberty and with the power of the people in the

House of Commons. Holding office from the Crown, though independent of it, and advanced to the peerage, they will have sympathy with both ranks and all the estates of the realm, which will make them eminently conservative of the governmental organism as well as of the rights of the people.

The supreme appellate tribunal in England, until the last few years, was the House of Lords. If all the Lords sat upon the appeals it would be a tribunal in which unwisdom and ignorance of law would be paramount; but custom rules in this, as in so many other things in the realm. None sat upon the appeals but those known as the "Law Lords," embracing the Lord Chancellor, the peers who were ex-Lord Chancellors, and who were recognized as learned lawyers. At present there has been a modification of this authority in the House of Lords. The appellate tribunal is composed of a select body of the "Law Lords," who sit finally upon the trial of all appeals. Thus, in the final ad-

judication of any question of jurisprudence, the best experience and learning of the profession is secured to constitute the final appellate tribunal.

§ 102. With all of our love for republican institutions and our settled and decided opinion against any system in which hereditary caste is represented in the organism of government, and with all of our views of the social evils which result from such castes in society in association with the people of the kingdom, and with all our preferences for the "American Constitution as the most wonderful work ever struck off at a given time by the brain and purposes of man," we are compelled to pay our tribute of admiration to the British Constitution as the most subtle organism which has proceeded from "progressive history."

The British Constitution, as we have seen, is a thing of growth and evolution � of historic progression. It was not made; it grew. There was none to make it. The people, as such, that is, as a Body-politic, were never heard. It was a strife between departments of a government constructed without popular consent, by the despotic force of human ambition and of lawless conquest. From underneath the very foundations of this abnormal power, the people writhed in the throes of revolt against a tyranny they could not overthrow. Each occasion that Providence offered to lessen the burden or relax the grasp of this unholy alliance of king, peer and priest, they seized and used as best they could. Year by year, generation after generation, from century to century, they broke the prescriptive prerogative which ruled them and checked its ruthless and unbridled dominion. When, by appeal to the justice and magnanimity of an Edward, or to the fears of the craven soul of a John, they were admitted to substantial though subordinate participation in the government, they used this advantage wisely. No step in advance was ever lost. Nulla vestigia retrorsum. They could not write in constitutional formularies their annual or centennial gains. But at epochs, and all along their triumphal march, they erected trophies and memorial

monuments in Magna Charta, the Petition of Bight, the Declarations and Bills of Rights, Reform Bills, and the like. The people taught lessons to despotism in solemn appeals to their ancient and undoubted rights and liberties, and once in the object lesson of a bloody scaffold for a royal violator of his word and a destroyer of the rights of his people. The British people rolled no Sisyphean stone to the heights of their aspiration for freedom. What they gained they held. And at last they stand upon those heights, with personal rights as secure, and with unwritten muniments of liberty as impregnable, as have ever been the possession of any people, save the inheritors of their free institutions, who have founded the written constitutions of these American States.

§ 103. We may well close our imperfect view of the subtle historic organism of the British Constitution, which is the result of institutional development from which that of America becomes a complete, fixed and supreme Constitution, � a bundle of institutional principles, but a paramount law for government and for men, with the eulogies bestowed upon the British Constitution by Lord Chatham and Daniel Webster.

Lord Chatham said: "The poorest man in his cottage bids defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter! But the king of England cannot enter! All his forces dare not cross the threshold of the ruined tenement."

Daniel Webster said: ... "The power which has dotted over the surface of the whole globe with her possessions and her military posts! Whose morning drum-beat, following the sun and keeping company with the hours, circles the earth with one continuous and unbroken strain of the martial airs of England!"

§ 104. We pass from the consideration of British institutions to American Constitutions. In order to obtain a full understanding of these we must recur to the historic period in which these American States had their origin, their development, and their final relationship as members of the union of States under the Constitution of the United

§ 105. The nature of the Constitution of the United States can only be ascertained by a precise delineation of the history of these States during their primeval condition, and their subsequent relationship down to the present time. It is a matter of history, not of myths � of fact, not of theory. We shall therefore consider only the historic facts, discarding all theories which do not rest upon a historic basis.

§ 106. On the nature of the Constitution of the United States and the relations of the States to the Union, there are two leading schools of thought:

First. That the unit of sovereignty is the State, which is a Body-politic; that the Constitution of the United States is a compact between these sovereign units and Bodies-politic, making a Federal Union between the States; that the organic Federal force of the Federal Union is the Federal Government, to which, by the Constitution of the United States, the States, separately and in combination, have delegated powers, reserving the residuum of powers not so delegated to the United States, nor prohibited to the States, to the State governments, or to the people of the States, respectively. Second. The second school holds that the Union is itself

the unit of sovereignty, of which the States are subordinate parts, to which certain powers belong under the Constitution of the United States, while the main powers belong to the National Government.

Under the first view the Union is a multiple of units; under the second, the Union is a unit of which the States are fractions. At the head of the second school, Judge Story is primus inter pares, and following him we have, in the present day, von Holst, Burgess, Hare, Pomeroy, and a number of others.

Von Holst deals with history thus: He reads the facts of the period of 1776 to 1789, not from the historic and actual view of the actors in that period, but from the subjective view of the actors in the period from 1861 to 1865, and instead of taking the facts as he substantially concedes them to exist in the period of which he treats, he substitutes for them mythical interpretations of those facts a century after they occurred, thus reversing the method of Niebuhr, the master historian of his own country, who rejected the myths of the later period and substituted for them facts as they really occurred, ascertained by his laborious research. He says that "the American Dictionary of Constitutional History is written in two parallel columns," one of which he admits to be a detail of the facts as they actually wore during the period from 1776 to 1789, and the other the truer view of the condition of things during that period, which did not occur to those who were actors in that period, but as they came to be seen by the men of a century later; and thus, instead of giving us the results of profound research into the facts of pre-constitutional history, he rests his whole theory, not upon real records, but upon the statements of them in the work of Judge Story, and upon the analogy which President Lincoln presents between the relations of the Union to the States and those of the State to the counties composing it. This extraordinary process adopted by the German historian of our American institutions will be disregarded in this work. We shall rest the maintenance of the

views taught in the first school of thought, above referred to, upon the deep and incontrovertible and immovable foundations of our whole history.

It may be well here to say that if a written Constitution, adopted by our ancestors in 1789, with their then clear view of the environment of facts which influenced their action, is to be changed radically by an interpretation of what those facts, according to the subtle analysis of a German historian a century later, ought to have meant, then written constitutions are no longer fixed and paramount, but may be set aside and annulled by the fancies and ingenious preferences of subsequent generations. The written Constitution of 1789 must be what those who brought it into being and gave it the sanction of their ratification believed and knew it to be, and cannot be changed by what men a century thereafter choose to think it ought to have been.

§ 107. We approach then the history of the adoption of the American Constitution. In order fully and clearly to accomplish our purposes, we will divide the subject into five historic eras:

I. The Colonial Era, from 1G07 to September 5, 1774, the date of the meeting of the first Continental Congress.

II. The Continental Congressional Era, from September 5, 1774, to March 1, 1781.

§ 108. The discovery of America in 1492 furnished a great stimulus to colonization. We have seen already that the original Teutonic races sprang from the Aryan migration from the slopes of the Caucasus before the Christian Era; and that the migration of the Angles, the Saxons and the Jutes in the fifth century to Great Britain established the Saxon commonwealth on that island; and that the Nor-

man migration, resulting in the conquest of 1066, based the civilization of our fatherland upon the character of races alien to it after the almost entire extinction of the aborigines. It is not surprising, therefore, that these migratory races, which in the course of centuries found themselves with a crowded population upon the soil of their native kingdom, should have reached out upon the discovery of a new continent for new homes and for a new arena for national development.

Henry VII., in 1495, granted a commission to John Cabot, a Venetian then living in England, to proceed on a voyage of discovery in the name and for the benefit of the British crown. In the succeeding year Cabot discovered the coast of the American Continent from the 56th to the 38th degree of north latitude, and claimed for his sovereign the region which stretched from the Gulf of Mexico to the most northern regions.¹ Other expeditions followed in later times, one being led by Sir Humphrey Gilbert, another by Sir Walter Raleigh, and thus Great Britain claimed the entire continent from the Atlantic coast to the Pacific Ocean. These commissions only authorize the taking possession of territory not occupied by another Christian power, which indicated "the right to take possession, notwithstanding the occupancy of the natives, who were heathen, and at the same time admitting the prior title of any Christian people who may have made a previous discovery."²

In the comprehensive opinion of Chief Justice Marshall in Johnson v. McIntosh,³ the doctrine upon which the United States claimed title to this country is as follows: "The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy either by purchase or by

¹1 Story, Comm. on Const., sec. 1. ² Chief Justice Marshall in Johnson v. McIntosh, 8 Wheat. 543.

conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them

The general doctrine of the right of a civilized nation, which discovered a territory occupied by heathen savages, to obtain as against all other civilized nations the preferable right to such new territory as against the heathen occupants, and the pre-empted right to extinguish the title of the heathen occupants, upon such terms, by treaty or conquest, as to the civilized nation would seem best, � however harsh it may seem in its broad statement, or may have been in its practical application, � stands upon sound principles of natural law and of intergential law. If the world be given by the Creator for the benefit of the human race, it can hardly be maintained that a few hundred thousand savages can claim a perpetual title to an entire continent, to be used by them as a theatre of nomadic life, without the cultivation of the soil or the improvement of its resources for the benefit of mankind, against the equal claim of crowded populations, who, by bringing the methods of civilized life to bear upon this new continent, could make the savages circumscribe the area of their occupation and subject that area to the methods of civilized life, without abridgment of their natural rights and with really an increase of happiness and well being. The doctrine sic utere tuo ut non alienum laedas would compel the savage to limit his occupations within an area which would not diminish his happiness, so as that the unused domain might be subjected to civilized methods for the benefit of the crowded populations of the world. But be this as it may, the doctrine of the rightful possession of the American continent by the different British colonies settled upon it has been so long recognized and enforced that it is needless to discuss it further. A full discussion of it will be found in the cases above referred to.

English colonization began during the reign of James I.: the first at Jamestown in Virginia in May, 1607, the other at Plymouth Rock in Massachusetts in December, 1620.

These colonists brought with them the spirit of British freedom, exalted in its courage by the bold temper which freedom inspires and enhanced by adventurous enterprise. A new continent, without fixed institutions, without king, nobility, or ecclesiastical authority, was open to the fresh impress of the sons of civilized life who landed upon its shores. All the bands of the old and established society of the mother country were loosened, and the colonial mind, free from the environment of ancient prejudices, was prepared for an order of things more natural and therefore more true. The scion of the ancient tree of liberty could better grow unchoked by the weeds of privilege and prerogative, in the soil, and drinking in the balmy air, of this virgin continent. As Lord Bacon has it, "No tree is so good first set, as by transplanting." Young and bold men � men tired of old habits, customs and thoughts, yearning to throw off the restraints of an ancient and effete social order (as the religious reformation had shaken the foundations of the ancient church), and to find full scope for the enterprises of life, and to impress themselves upon a new and unformed empire, � these were the colonists that braved the rock-bound coasts of New England and plunged into the untrodden wilderness of tidewater Virginia. They panted to be free, and could not be enslaved! The history of each colony will show that its people held with a clear comprehension and vigorous grasp all the fundamental principles of Magna Carta. § 109. There were three forms of colonization: First. By conquest or cession from a Christian power. In this case the prior laws prevailed until changed by the Crown of England. This was the case of New York as ceded by Holland.¹

Second. By conquest or cession from an infidel power. Here it was doubtful if any prior laws continued; certainly none which were contrary to the law of God.²

¹ Calvin's Case, 7 Coke, 17b; Atty. Gen. v. Stuart, 2 Merivale, R. 158; Campbell v. Hall, Cowp. 211.

² Same cases as note 1; Blankhard v. Galy, 2 Salk. 411; s.c., 4 Mod. 222; 2 P. Wms. 75.

Third. Colonization of an unoccupied country, or one vacated by the original people.

Though in Smith v. Brown¹ Lord Holt thought otherwise, yet in other cases the better opinion has prevailed that the American colonies come under this last form of colonization, and thus have been held to have brought with them the English law at the time of their settlement.² Blackstone held that our American plantations were principally colonies by conquest or cession of the countries to Great Britain, and that therefore the Common Law of England as such has no authority there, � they being no part of the mother country, but distinct, though dependent, dominions. Judge Tucker in his "Commentaries "³ controverts this doctrine, and shows that the colonists brought with them to Virginia the Common Law of England and all statutes or acts of Parliament made in aid thereof prior to the 4th year of James I. This opinion of Judge Tucker is sanctioned by the decision of Johnson v. McIntosh, and by the whole of our revolutionary history, and by the uniform concurrence of American decisions. An interesting statement of the origin and settlement of Virginia, of New England, including Massachusetts, New Hampshire, Connecticut, Rhode Island, Pennsylvania, New Jersey, New York, Delaware, North and South Carolina, will be found in Story's Commentaries on the Constitution, pages 21 to 183. References to these historic questions will be made where necessary in the sequel.

Blackstone states in reference to colonization that colonies are "no part of the mother country, but distinct, though dependent, dominions."⁴ Each colony brought with it all the English laws then in being, which are the birth-right of every subject, and are immediately there enforced.⁵ In consequence of this, each colony was a dominion distinct from

²Cases above referred to; Rex v. Brampton, 10 East, R. 282; Johnson v. McIntosh, 8 Wheat. 543; 1 Story's Comm. on Const., § 152.

and no part of any other, and though each was dependent on Great Britain it was independent of every other. No colony had a part in the British government, and a fortiori exercised no influence upon the policy of the sister colonies. As to the power of the parent country several opinions prevail. In all it was conceded that the king could not legislate for these American colonies.

"The right of legislation," says Mr. Stephen, "is in some cases vested in the crown; for any colony which has been acquired by conquest or cession is subject to such laws as the sovereign in council may impose."¹ And he adds: "This does not extend, however, to colonies acquired by occupancy; for in these the crown possessed no such legislative right."

The power of Parliament to legislate for the colonies was, however, a different question. Lord North and his adherents enacted in 6th George III., chapter 12, that Parliament could legislate for the colonies in all cases whatsoever. Many others, Edmund Burke among them, conceded the power to Parliament to legislate upon all subjects affecting the interest of the British empire and its general commerce; while others denied all such power of legislation for the colonies.

Without attempting to settle this mooted and now unimportant question, there can be no doubt that the reservation contained in many of the charters, that colonial legislation should not be "contrary to the laws and statutes of our realm of England and to the general commercial regulations by Parliament," acquiesced in by the colonies, as well as the practice of Parliament since our Revolution with respect to other colonies,² and the Parliamentary power exercised in the abolition of slavery in the colonies by the act of 3d and 4th William IV., chapter 73, compels the admission of some legislative power in Parliament over the colo-

¹ Stephen's Commentaries, vol. 1, p. 105; Calvin's Case, supra; Campbell v. Hull, supra.

nies. But truth and justice demand that we should repudiate with our forefathers the right of taxation claimed by the Parliament in the colonies, and hold that the sole power of taxation for each colony was in its own distinct colonial

§ 110. Grotius thus defines a colony: "When a people by one consent go to form colonies, it is the origin of a new and independent people, for they are not sent out to be slaves, but to enjoy equal privileges and freedom."^l That this defines the nature of the British colonies will appear from many considerations. The settlement of these different colonies and their primal governments may be first considered. § 111. The Colony of Virginia was the first of these settlements. She was named before her birth in Edmund Spencer's dedication of the "Faerie Queene," to "Elizabeth, by the grace of God, Queene of England, France, Ireland and Virginia." The first settlement under her charter of April 10, 1006, was on the Powhatan River, in May, 1607. By this and subsequent charters two colonies were formed. The first was directed to settle between the 31th and 41st degrees of north latitude, and the second between the 38th and 45th degrees, � with this proviso, that the "latter was not to be within an hundred miles of the prior colony." No person was to settle in either colony without the consent of the council in writing.² A later charter gave power to establish a government for Virginia, named a large number of corporators, who were made a corporation or Body-politic; gave them power to take out any other colonists they chose, and to admit and expel members and keep out intruders, etc.³

Sir George Yeardley, then Governor of the Colony to quiet the uneasiness of the colonists because of the lack of popular authority in the government, in April, 1619, called a general assembly, composed of representatives from the

² 1 Henning's Statutes at Large, p. 57, etc. ³ Id., p. 91, etc., and p. 98, etc.

various plantations in the colony, for purposes of legislation. This was the first representative legislature that ever sat in America.¹

In 1621, July 24th, a regular government was constituted by ordinance, composed of the Governor, Council and the House of Burgesses elected by the people,² and this General Assembly was granted free power as to all matters concerning the weal of the said colony, and to make, ordain and enact such general laws for the behoof of the said colony as shall appear necessary or requisite.³ This was the first embryo civil Body-politic in America, dependent upon, but distinct from, the parent country, with a nucleus about which it could aggregate the materials for an organism and exclude such as it pleased. This was the foetal commonwealth, or germ of a new state. In 1623-24 the House of Burgesses by law asserted that the Governor "shall not lay any taxes or imposts upon the colonists, their lands or commodities, otherway than by the authority of the General Assembly, to be levied and employed as the said Assembly shall appoint."⁴ This law was re-enacted in 1631 and in 1632.⁵ It was repeated in 1642,⁶ and it was again repeated with emphasis in these words: "And further it is enacted and confirmed that no levies be raised within the Colony but by a General Grand Assembly."

It will be seen that this assertion of popular power over taxation and appropriation � the key-note of British liberty and the prophetic announcement of the American Revolution � preceded the beginning of the conflict in England between the Commons and the King upon the Petition of Right in 1628, and upon "ship money" in 1636-37, and was repeated from time to time, the last time being in 1645-46,

After the death of Charles I. and the establishment of the commonwealth in March, 1651, a treaty was agreed on "by the commissioners of the council of state by authority of the Parliament of England, and by the Grand Assembly of the Governor, Council and Burgesses of that country" (meaning Virginia). By this treaty it was agreed that Virginia and her inhabitants should remain in due obedience and subjection to the commonwealth of England according to the laws there established. "and that this submission and subscription be acknowledged a voluntary act, not forced nor constrained by a conquest upon the country, and that they shall have and enjoy such freedoms and privileges as belong to freeborn people of England: That the Grand Assembly, as formerly, shall convene and transact the affairs of Virginia so that nothing be done contrary to the government of the Commonwealth of England: That Virginia should enjoy her ancient bounds and limits granted by the charters of former kings; that the people of Virginia have free trade, as the people of England do enjoy to all places and with all nations according to the laws of that Commonwealth; and that Virginia shall enjoy all privileges equal with any English plantations in America: That Virginia shall be free from all tax, custom and imposition whatsoever, and none to be imposed on them without the consent of the Grand Assembly, and so that neither forts or castles be erected or garrisons be maintained without their consent."¹

During the period of the Commonwealth of England, Virginia elected her own governor, and on the death of Richard Cromwell her Assembly declared: "The supreme power of government of this Country shall be resident in the Assembly;" that all writs should issue in its name "until such a command and commission come out of England as shall be by the Assembly adjudged lawful."²

Thus facts establish not only the original distinctness of the colony of Virginia from all subsequent colonies thereafter established, but show that her independent action by treaty with the Parliament of England established for her complete autonomy in the matter of taxation and in the matter of any garrison established in her borders, except by her consent; and furthermore, that she assumed to herself the power of determining upon the legitimacy of the authority that came out from England after the expiration of the Protectorate.

On the 11th of November, 1620, the Pilgrim Fathers, before landing, entered into the following agreement, signed by forty-one persons, though the whole number of men, women and children amounted to one hundred and one. The terms of this celebrated paper are here quoted in full:¹

"In the name of God, amen. We, whose names are underwritten, the loyal subjects of our dread Sovereign Lord, King James, &c., having undertaken, for the glory of God and advancement of the Christian faith, and honor of our King and country, a voyage to plant the first Colony in the northern parts of Virginia, do, by these presents, solemnly and mutually, in the presence of God, and of one another, covenant and combine ourselves together, into a civil Body-politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws and ordinances, acts, constitutions and officers, from time to time, as shall be thought most meet and convenient for the general good of the colony; unto which we promise all due submission and obedience."

They obtained afterwards, in 1629, a patent from the Council established at Plymouth, in England, in which they were authorized to make laws for the government of the people. They continued to act under this authority until all charters were overthrown in 1684, and finally, by a charter

granted to Massachusetts by William and Mary in 1691, they were incorporated into that province, and so continued from that time. It is curious to note some of their legislation, in which they clung to the doctrines of Magna Carta, and jury trial. Their criminal code was based largely upon the Mosaic system, in which the crimes of idolatry, blasphemy, witchcraft, cursing and smiting father and mother were made capital offenses along with murder, treason, rape,

The Colony of Massachusetts was constituted under a charter to the Duke of Lenox and others, with very large powers and with extensive territory, and with complete power over all the people of the Colony, and to regulate trade and traffic to and from the Colony, and to prohibit the same to all persons not licensed by the Corporation. Afterwards the whole power under the charter, which had originally been conferred upon the company resident in England, was transferred to New England itself. The Colony was called Massachusetts Bay.

With the fall of the colonial charter in 1684, a new charter was granted in 1691 to Massachusetts Bay, and thenceforth it became a province acting under the government established by this charter until the Revolution. The peculiarity of their legislation was, like that of the Plymouth Colony, based upon the Mosaic code.²

In 1636 the Plymouth Colony declared against all taxation but "by the consent of the body of freemen or their representatives legally assembled."³ In 1661 Massachusetts made the same declaration, and the Assembly of Rhode Island in 1663-64, and Maryland in 1650, did the same.⁴

New Hampshire was established under a grant in 1629 from the council of Plymouth. This grant was subsequently contested by Massachusetts, the question was heard before the king in council in 1679, and the claim of Massachusetts was adjudged invalid, and New Hampshire as a distinct

province was recognized. A commission was in that year issued by the crown for the government of New Hampshire.¹

The establishment of the other colonies, Connecticut, Rhode Island, Maryland, New York, New Jersey, Pennsylvania, Delaware, North and South Carolina and Georgia, are interesting and will be found summarily stated in 1 Story's Commentaries, pages 7 to 15, inclusive. This summary shows, without any exception, that each one of these colonies was established upon a distinct and independent foundation, with distinct and independent powers of taxation and internal polity, and with some power of regulating its trade and commerce with other colonies and with the world. Among these New York may be mentioned for a difference between it and the others in one respect: that it was once claimed as a colony of Holland, but was acquired by treaty in 1667 and became an English colony under patent to the Duke of York in 1664 and 1674. This Hollandic origin differentiates New York from all the others, and has perpetuated in that great State many traces of Hollandic institutions and customs.

A general statement upon this subject may be summarized from a letter supposed to have been written by Edmund Burke, dated May 19, 1774, in which, speaking of the colonies, the author says: The crown, "by most solemn compacts, did form them into separate civil systems, with all the powers of distinct legislation and government; that it was manifestly the royal intention to form those colonies into distinct states dependent on the crown but not on the Parliament of England." He adds, their history "fully demonstrates that they were really and intentionally created distinct states and exempt from the authority of Parliament, and nothing but an act of union made with their own consent can annex them with the realm or subject them to its legislation."²

§ 113. But this complete colonial distinctness is shown by the diverse forms of their governments. These forms

The Provincial establishment depended on the commission issued by the crown to the governor and the instructions which usually accompanied the commission. This commission usually appointed a governor as the king's deputy. The crown also appointed the council, which constituted one branch of the legislature, and were also to assist the governor in the discharge of his official duties. The commission also contained authority to convene a general assembly of representatives of the people, and thus a general assembly, composed of governor, council and representatives, was constituted, which assembly had the power to make laws not repugnant to the laws of England and subject to the crown's assent or dissent. This was the form of government for the provinces of New Hampshire, New Jersey, Virginia, North Carolina, South Carolina and Georgia.

The Proprietary governments were those granted by the crown to individuals in the nature of feudatory principalities, with all the subordinate powers of legislation which formerly belonged to the owner of the counties palatine. In this proprietary government the governors were appointed by the proprietaries, and legislative assemblies were convened by their authority, and the proprietaries exercised

the usual prerogatives which in provincial governments belonged to the crown. The three colonies subject to this form of government were Maryland, Pennsylvania and Delaware.

Charter governments are "in the nature of civil corporations, with the power of making by-laws for their own internal regulations not contrary to the laws of England; and with such rights and authorities as are specially given them in their several charters of incorporation. They have a governor named by the king (or in some proprietary colonies by the proprietor), who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king and council here in England. Their

general assemblies, which are their House of Commons, together with their council of state, being their upper house, with the concurrence of the king or his representative, the governor, make laws suited to their own emergencies."¹

Judge Story thinks that this description by Blackstone is not correct; that the charter governments were not merely civil corporations, but were "great political establishments, possessing the general powers of government and rights of sovereignty, dependent indeed and subject to the realm of England, but still possessing within their own territorial limits the general powers of legislation and taxation." This modification by Judge Story of the description given by Blackstone is doubtless correct, and the two constitute a fair description of the character of these Charter governments.

The colonies which were subject to Charter governments were Massachusetts, Rhode Island and Connecticut. Connecticut continued under its charter until 1818, and Rhode Island until within the last decade.

§ 114. The fundamental laws of the colonies differed essentially. Each brought with it the Common Law of England, and the statutes modifying the same passed up to the date of its settlement; thus each colony brought with it the Common Law with diverse statutory modifications.

We have already adverted to the fallacious view which Blackstone takes of the Common Law of England becoming a part of the law of each of the colonies. In addition to what has already been said upon that subject, we may refer to the views of Judge Story condemnatory of the doctrine of Blackstone.² The resolutions of Congress, October 14, 1774, may also be consulted.³

New York had at the time of its cession to England Hollandic laws, which existed as valid laws, except as superseded or modified by the English government.

This fundamental body of law, the Common Law of England as it existed at the date of the settlement of the colony, was subject to change by the legislature of the colony, and therefore at the date of the Revolution each colony was governed by a separate system of laws composed of the Common Law as it was in each at the date of settlement, modified by the separate and distinct legislation of each after settlement. No Parliament, and a fortiori no other colony, could or did intrude its voice in the enactment of these statutes of each colony, so that the original distinctness of the colonial systems of laws was perpetuated through the distinctness of the diverse colonial governments of each separate and distinct colony.

§ 115. But the essential distinctness between the colonies as political organisms is manifested in the regulation by each, not only of its internal polity and taxation, but of great questions of sovereign power in each, which manifests the functions of a supreme sovereign. We will present a series of such acts by the Colony of Virginia, which doubtless find their parallel in the legislation of the other

The regulation of foreign commerce and the requirement that all persons take oaths of supremacy and allegiance, as early as 1631-32:¹ Grant of freedom in trade to the subjects within the Kingdom of England (1644-45):² Treaty with Maryland, allowing freedom of trade to her people within the Colony of Virginia, ratified by the General Assembly in 1642:³ Regulation of the Dutch trade and duties laid upon the exports of tobacco (1657-58):⁴ Denizations of aliens upon an oath of fidelity to the government of Virginia:⁵ A general act of naturalization in 1671, confining it only to Virginia, "beyond which this Grand Assembly pretend to no authority of warranting its sufficiency:"⁶ Laws in reference to the ex-

portation of goods;¹ and export duties thereupon:² An act (1705) of naturalization confirming titles to land purchased of aliens:³ Duties on tonnage and port duties:⁴ An act establishing quarantine regulations in 1722:⁵ Regulation of the rate at which different species of gold coins shall be current and legal tender:⁶ Regulation of silver coins:⁷ An act making it treason to counterfeit any such coin:⁸ Treaties between the Colonies of Virginia and Maryland:⁹ A levy of Virginia troops, upon the request of his Majesty, to aid him in his war against Spain:¹⁰ Impressment and enlistment of soldiers: Additional duties levied on slaves to aid in the war:¹¹ Appropriation of money for the support of said troops and the borrowing of money for the purpose, and the pledge of duties on certain articles as security for the loan:¹² Prohibition of the bringing into the colony of horses from any other colony, without license from Virginia:¹³ The erection of a light-house at Cape Henry, and the levy of a duty to he paid by all ships coming into the Bay of the Chesapeake:¹⁴ Issue of treasury notes during the French war, and the pledge of duties imposed by the act as security for their redemption:¹⁵A levy of duties on slaves brought from Maryland, Carolina, or the West Indies:¹⁶ The making treasury notes legal tender for debts contracted subsequent to their issue:¹⁷ A levy of an additional duty on rum imported from any other country than Great Britain, or some of his Majesty's sugar colonies.¹⁸ Acts declaring what shall constitute treason against

¹2 Henning's Statutes at Large, pp. 124, 125, 127, 128, 179, 216, 287, 498, 261, 338.

his Majesty and the government of Virginia were passed from time to time during all her history. Virginia, in 1705, enacted that no person should hold any office within Virginia until he had been a personal resident in the same for three years, reserving to natives of Virginia, without such residence, the power of holding office.

This recital of the continued exercise of those sovereign powers which belong to independent nations, by the Colony of Virginia, and doubtless by the other colonies, during the whole period to the Revolution, establishes beyond doubt that, except as subject to the power of the crown, of which it was a dependency, each colony was a separate, though dependent, nation.

Massachusetts, New Plymouth, Connecticut and New Haven � formulated articles of Confederation for offense and defense, upon terms that left to each of these colonies the exercise of their peculiar jurisdiction and government within their limits. This Confederation secured these colonies from the incursions of the Indians and the claims of the Dutch, but at the dissolution of all the charters in 1684 it was finally dissolved. "This little Confederacy was not without its difficulties and disputes among the members, which at times threatened its dissolution."^l The jealousies felt by the several members of this little Confederacy of the action of the centralized power were prophetic of the later events in our history, and indicated a resentment of anything which took away from any one of the colonies its separate and independent right to regulate its own internal polity.

§ 117. During the reign of William and Mary the government of England set on foot a plan of general defense, by which the quotas of each colony were assessed in the ratio of its population, and this scheme was forwarded to the different governors with directions to recommend it to the several assemblies for adoption. The plan was proposed to the legislature of Virginia by its governor, Sir Francis Nichol-¹1 Pitkin's History, p. 50, etc.; and a copy of the Articles, Id., p. 423, etc.

son, and was strenuously urged upon the legislature for adoption. The legislature refused with decided emphasis. It is interesting to note that the scheme involved the representation of each province by deputies to meet and form a congress. This is the first use of the word in our history. All efforts to establish such a union, even for the limited purposes of protection to each and all the colonies, found no favor and it was rejected; affording clear evidence that during the colonial period they were not only entirely distinct and separate in their political existence, but so repellant as jealously to reject all plans of union.¹

§ 118. In 1753, however, the British government proposed a plan of union in a letter from the Secretary of State. A number of commissioners met at Albany from New York, New Hampshire, Massachusetts, Connecticut, Rhode Island, Maryland and Pennsylvania. The plan of this union was for their mutual defense and security, and for extending British settlements in North America. The proceedings of this meeting of commissioners, and the plan which was formulated for this union, are detailed by Pitkin.² The impulse to this proposition grew from the impending French war, and the unanimous declaration of the commissioners was that a union of the colonies was absolutely necessary for their protection. Dr. Franklin was a member of the committee which drew the plan of union, and to his pen it is to be ascribed. The scheme received the consent of all the commissioners except those from Connecticut. It was rejected in England because it left too much power with the colonies; in America, because it transferred too much power to the crown. This scheme not only was predicated upon the entire separateness of the different colonies, but that no general government for them could be adopted without the consent of each and all of them.

tious between the mother country and the colonies, due to the exercise of that power, gave rise to a movement in 1705 for a meeting of the colonies, through committees from the house of representatives of each of the several colonies, to consult upon the crisis in colonial affairs. The commissioners met in New York in 1765. All the States except New Hampshire, Virginia, North Carolina and Georgia were represented. They issued a Declaration of Rights, in which they declared that they were entitled to all the inherent rights and liberties of natural-born subjects of the British kingdom; "that it is inseparably essential to the freedom of a people and the undoubted right of Englishmen, that no taxes be imposed on them but with their own consent, given personally or by their representatives;" "that the people of these colonies are not, and from their local circumstances cannot be, represented in the House of Commons of Great Britain; that the only representatives of these colonies are persons chosen therein by themselves, and that no taxes ever have been, or can be, constitutionally imposed upon them but by their respective legislatures; that all supplies to the crown being free gifts from the people, it is unreasonable ... for the people of Great Britain to grant to his Majesty the property of the colonists."^l

§ 119. But the most formidable and powerful statement of the relations of the colonies among themselves and to Great Britain is found in the memorable declaration of the First Continental Congress, October 14, 1774.² This declaration declared "the free and exclusive power of legislation" to be "in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity."..."That the respective colonies are entitled to the Common Law of England" and all its great and inestimable privileges, ... and to such "immunities and privileges granted and confirmed to them by royal charters or secured by their several codes of provincial laws." ... That a standing army in time of peace in

any colony, without the consent of its legislature, is against law.... And that these indubitable rights and liberties cannot be taken away from them or abridged, "without their own consent, by their representatives in their several provincial legislatures."

This declaration by the colonies, on the threshold of their first union, of the entire separateness and independence of the political existences of the several colonies, and the absence of all claim on the part of the Congress of any power in the union of the colonies, except as derived from the separate authority of each, is an authoritative confirmation of the fact that these colonies were embryo commonwealths, totally independent of each other, and only dependencies on the crown of Great Britain. Subject to that dependency, they were, in all respects which constituted the sovereignty of nations, complete commonwealths, subject to no external authority in the world except the authority of the government of Great Britain.

§ 120. These conclusions, after this full review of the facts, are sanctioned by very high authority.

Judge Story declares: "For all the purposes of domestic and internal regulation, the colonial legislatures deemed themselves possessed of entire and exclusive authority.... The colonial legislatures, with the restrictions necessarily arising from their dependency on Great Britain, were sovereign within the limits of their respective territories.... All the colonies considered themselves, not as parcel of the realm of Great Britain, but as dependencies of the British crown, and owing allegiance thereto, the king being their supreme and sovereign lord.... Though the colonies had a common origin and owed a common allegiance, and the inhabitants of each were British subjects, they had no direct political connection with each other. Each was independent of all the others; each, in a limited sense, was sovereign within its own territory. There was neither allegiance nor confederacy between them. The assembly of one province could not make laws for another, nor confer privi-

leges, which were to be enjoyed or exercised in another, further than they could be in any independent foreign state. As colonies they were also excluded from all connection with foreign states. They were known only as dependencies."¹

Mr. Curtis² says: "The colonies had no direct political connection with each other before the devolution commenced, but each was a distinct unit, with its own separate political organization, without any power of legislation for any but its own inhabitants."

This emphatic declaration of Judge Story, followed by Curtis, would be injurious to the theory which Judge Story so persistently asserts of the sovereignty of the Union of the States and the subordination of the States to that Union. Accordingly we find that Judge Story has added this qualification: "But, although the colonies were independent of each other in respect to their domestic concerns, they were not wholly alien to each other. On the contrary, they were fellow-subjects, and for many purposes one people. Every colonist had a right to inhabit, if he pleased, in any other colony; and, as a British subject, he was capable of inheriting lands by descent in every other colony."³ This passage is justly subject to criticism, for it is not pretended that the law of inheritance in any colony was fixed by any other authority than that of its colonial legislature. A Briton may now inherit land in Virginia under our act of 1867, but he inherits by virtue of Virginia law, and his power to do so does not make a Briton and a Virginian fellow-citizens of Virginia. The right to inherit land depends not on community of citizenship, but on the lex loci rei sit�; and heirship to land must be traced by that law. Thus a Scotchman, though not an alien in England, since Scotland and England are now one kingdom, cannot inherit land of his father in Eng-

³ 1 Story's Comm., sec. 178; 1 Curtis' History of the Constitution of the United States, p. 9.

The capacity to inherit or hold land in a colony, as in England, was due to the tie of allegiance. In Calvin's case,²when Scotland and England were two separate kingdoms with a common king, James I. of England, who was James VI. of Scotland, and when there was no political ligament but the common crown, and the two kingdoms were not one people, it was held that Calvin, a Scot, could hold land in England by virtue of his allegiance to the person of the king of both countries. So that the test applied by Judge Story to establish that the colonies were, in this sense of capacity to inherit, one people, fails utterly. It is no test at all. It depends on a fact having no relation to the oneness of the people of the colonies. For, in the one case above cited, inheritance did not follow from the oneness of Scotland and England, yet in the other it resulted because of the common tie of allegiance to one king, when there was entire separateness between the two kingdoms.

Nor is it true that by the original terms of the charters of the colonies a citizen of one could, without the consent of the other, settle in that other.³ But even if he could, the right was derived from allegiance to a common crown. But the legislation that has been already referred to settles this question.

In 1779 Virginia defined citizenship, and gave "to the free white inhabitants of every of the states, parties to the American Confederation, paupers, vagabonds and fugitives from justice excepted," all rights of citizenship within this commonwealth.⁴ The grant of this privilege, as well as its limitations, proves that the oneness of the colonies deduced by Judge Story from the freedom of inhabitancy and inheritance grew only out of the common allegiance, which, when

broken in 1776, left the colonies and the people or each separate and distinct. And Virginia, in order to grant what without it they would not have possessed, extended the privilege of citizenship to those who were inhabitants of the other states of the Confederacy, excepting those who would have been detrimental to her society. And this point made by Judge Story loses all of its significance when, under the Confederation and the present Constitution of the United States, the privilege and immunity of citizenship is secured to the citizens of other States in each of them by an express contractual provision.¹

§ 121. The whole difficulty lies in the meaning to be attached to the equivocal phrase "one people," as used by Judge Story. If he means one people in the sense that all were Britons, � that all were under one king and dependencies of one kingdom, � there is no controversy. But the question we are discussing is, what political relation did the colonies hold to each other? and not were they dependencies of a common mother kingdom, but were they one civil Body-politic.

It is conceded by Judge Story that neither had any authority over or within another, � that neither was a part of the mother country, but a dependency, and that neither was any part of another. The non-alienage of the inhabitants of one in every other has been explained: the doctrine of inheritance has been shown to depend on different principles. Where, then, was there a shadow of political unity between

the colonies? In fact, as each was sovereign (by Judge Story's concession), except for the supremacy of the Crown or Parliament of the mother country, the overthrow of that supremacy converted the conditional sovereignty of the colony into an absolute sovereignty. Previously conditioned upon its dependency, that condition was overthrown and the sovereignty became absolute when the dependency ceased. Independence of Great Britain determined the condition and

left its sovereignty absolute. Each colony, by a separate ligament, was bound to Great Britain as a dependency. That distinct ligament being severed, each fell from the parental stem a separate commonwealth, independent of the mother country as of every other.

Acorns hanging from an English oak have many ties to the sturdy tree, but, falling to the earth, each is the germ and seed of a new and distinct life, each independent of its parent as of every other. There is a moral brotherhood and sympathy between children of a common mother, but each has his distinct faculties, his own will, his separate and independent life, free from the control or legal influence of his brethren.

While, therefore, conceding in full force the affinity and sympathies between the colonies, the philosophical historian must deny all political bonds between them, and maintain their absolute political independence as civil bodies-politic. The colonies, on becoming independent of Great Britain, became distinct and separate commonwealths, independent of the mother country and independent of each other. This point has been dwelt upon because the primordial unity between the colonies, being assumed or conceded, has led to radical errors in the subsequent history of the colonies merging into their independent condition as states.

II. THE CONTINENTAL CONGRESSIONAL ERA, FROM SEPTEMBER 5, 1774, TO MARCH 1, 1781.

§ 122. The assertion of power by the act of 6th George III., known as the "Grenville Act," claiming the power for Parliament to legislate for the colonies in all cases whatsoever, roused a state of feeling in America which was the presage to revolution.

The general apprehension gave rise to the organization in each colony of a committee of correspondence, through which communications were made between the colonies looking to a united defense of their liberties. But in 1774 the

passage of the "Boston Port Bill," and the falsely conciliatory project of Lord North, which struck off all the obnoxious duties except that of three pence a pound on tea, roused the people of Boston to the point of throwing overboard "240 chests of this abhorred and parliamentary poison into

The Assembly of Virginia was in session when the rough drafts of those obnoxious bills were communicated from Massachusetts. The Assembly entered at once an indignant protest against these acts. Whilst engaged in these defiant proceedings, Lord Dunmore, the Governor, dissolved them May 27, 1774. On the following day the members met by agreement at the long room in the Raleigh tavern, when, though divested of formal legal authority by the dissolution, yet as the true representatives of the people of Virginia, they entered into an agreement unanimously. They agreed that tea ought not to be used at all in the colony, nor any East Indian commodity, because the East India Company was leagued with the government against the liberties

They declared: "We are farther clearly of the opinion, that an attack made on one of our sister colonies, to compel submission to arbitrary taxes, is an attack made on all British America, and threatens ruin to the rights of all, unless the united wisdom of the whole be applied. And for this purpose it is recommended to the committee of correspondence, that they communicate with their several corresponding committees on the expediency of appointing deputies from the several colonies of British America, to meet in general congress, at such place annually as shall be thought most convenient; there to deliberate on those general measures which the united interests of America may from time to time require."²

p. 380; 1 Pitkin's History pp. 467, 468; American Archives, 4th series, vol. I, p. 350.

This was followed by a recommendation that a convention meet at Williamsburg on the 1st day of August, to be composed of delegates from the different counties in the colony and dominion of Virginia. That convention met on the clay named, and passed resolutions of the most determined character, and resolved that a general congress of deputies from all the colonies should assemble, and appointed to that general congress seven delegates, to wit: Peyton Randolph, Richard Henry Lee, George Washington, Patrick Henry, Richard Bland, Benjamin Harrison and Edmund Pendleton.

Rhode Island, on June 15, 1774, concurred in this recommendation of Virginia;¹ and Massachusetts, on June 17, 1774,² resolved that "a meeting of committees from the several colonies was proper to determine upon wise measures to be recommended to all the colonies." The action of the several colonies in response to this call by Virginia, as far as they led to the meeting of the congress of the colonies, may be seen in full in the Journals of that body.³ Georgia was not present in that congress.

§ 123. This First Continental Congress of twelve colonies met at Carpenter's Hall in Philadelphia on the 5th of September, 1774.

The questions which we propose to consider in respect to it are: What was its nature? Whom did it represent? From whom did it derive its power? For whom did it act? Let its own Journal and the official records decide.

Judge Story says:⁴ "Thus was organized, under the auspices and with the consent of the people, acting directly in their primary, sovereign capacity, and without the intervention of the functionaries to whom the ordinary powers of government were delegated in the colonies, the first general or national government, which has been very aptly called 'the revolutionary government,' since in its origin

and progress it was wholly conducted on revolutionary principles. The Congress, thus assembled, exercised de facto and de jure a sovereign authority; not as the delegated agents of the governments de facto of the colonies, but in virtue of original powers derived from the people. The revolutionary government thus formed terminated only when it was regularly superseded by the confederated government under the articles finally ratified, as we shall hereafter see, in 1781."

This statement of the learned author is neither correct nor accurate, and, as he deduces very extreme conclusions in support of his theory from this statement, it is important that the facts shall be succinctly stated. Whenever the organized legislature of a colony was permitted by its governor to remain in session, the deputies to this Congress were appointed under the authority of the popular branch of the colonial government, excluding the governor and council.

Thus, the House of Representatives of Massachusetts in. electing their representatives resolved that "a meeting of committees from the several colonies on this continent to consult upon ... and to deliberate and determine upon wise and proper measures, to be by them recommended to all the colonies for the recovery and establishment of their just rights," etc. Therefore they elected five members as "a committee on the part of this province for the purposes aforesaid."

In Rhode Island, the general assembly of the colony appointed two delegates "to represent the people of this colony in General Congress of Representatives from this and the other colonies ... to meet and join with the commissioners or delegates from the other colonies, in consulting upon proper measures to obtain a repeal of" certain obnoxious acts.

The Connecticut House of Representatives authorized the committee of correspondence to appoint deputies, and the House declared that "the persons thus to be chosen shall

be, and they are hereby directed, in behalf of this colony, to attend such Congress; to consult and advise on proper measures for advancing the best good of the colonies, and such conferences from time to time to report to this House." The committee of correspondence, pursuant to said authority, appointed the delegates from Connecticut.

In the case of New York they were appointed by popular vote in several of the towns and counties.

In New Jersey, "the committees appointed by the several counties of the colony of New Jersey to nominate deputies to represent the same in General Congress of deputies from the other colonies in America," convened and nominated, etc.

In Pennsylvania the House of the Assembly appointed seven persons as a committee "on the part of this province.'' The purpose declared was to consult upon the unhappy state of the colonies, to form a plan for obtaining redress and asserting American rights upon the most solid and constitutional principles, and for establishing union and harmony between Great Britain and the colonies.

The representatives of the people of Delaware, "taking into our most serious consideration the several acts of the British parliament," etc. In the absence of the legislative department, which could not be called together, they appointed deputies "in behalf of the people of this government to meet and act with those appointed by the other provinces in General Congress," to consult and advise with the deputies and to determine upon all such prudent and lawful measures.

In Maryland a meeting of the committees appointed by the several counties appointed "deputies for this province" "to effect one general plan of conduct ... for the relief of Boston and preservation of American liberty."

In the province of New Hampshire, at a meeting of deputies appointed by the several towns in this province for the election of delegates on behalf of this province to join the General Congress proposed, there were present eighty-five

members. Two delegates were appointed on the part of this province to attend and assist, etc., to advise, consult and adopt such measures as to extricate the colonies from their present difficulties, etc.

In Virginia delegates were appointed by the convention of delegates from the counties of the colony to the General Congress of deputies from all the colonies to consider the most proper and effectual manner of so operating on the commercial connections of the colonies with the mother country as to procure redress for the much injured province of Massachusetts Bay, to save British America from the ravage and ruin of arbitrary taxes, and to restore harmony, etc. The House of Assembly of South Carolina ratified and confirmed the appointment of deputies "on the part and behalf of this colony to meet the deputies of the other colonies, etc., in General Congress in reference to the grievances, etc., with full power and authority to concert and agree to such legal measures as in the opinion of said deputies and of the deputies so to be assembled, shall be most likely to obtain a repeal," etc.

North Carolina, at a general meeting of deputies of the inhabitants of this province, appointed deputies to take such measures as they may deem prudent, investing them with such powers "as may make any acts done by them, or consent given in behalf of this province, obligatory in honor upon every inhabitant hereof." It will be perceived:

First. That in Massachusetts, Rhode Island, Connecticut, Pennsylvania and South Carolina, the deputies were appointed by authority of the colonial governments.

Second. In all the others, the governments had been dissolved by royal power, but in these the elections were made by meetings of the people in convention, and for and on behalf of their particular colony.

Judge Story obviously intends to intimate that the action of the people was in their primary and sovereign capacity. But what people? Is there anything in the action of any

one of the provinces which indicated that the people or the governments so acting in them were acting as parts of a larger civil Body-politic, of which each colony was a fractional part; and is not the evidence conclusive from these credentials that the electoral body of the deputies to Congress was acting only on behalf of the province or colony? The equivocal expression of the learned author, that the deputies acted upon original powers derived from the people, needs only to be restated to refute his conclusion. The election of the delegates from every province to the first Continental Congress was by the separate legislative body of the respective provinces, or by the people within that province, acting for and in behalf of that province, and that province alone.

Third. The opening of the Journal is conclusive upon this point. It reads: "A number of the delegates chosen and appointed by the several colonies and provinces in North America to meet and hold a Congress at Philadelphia assembled at Carpenter's Hall.

It is premature also to assert that the first Continental Congress was acting in any sovereign capacity. It acted simply as the deputies of a number of colonies who were seeking redress for grievances inflicted by the British government and for the restoration of the friendly relations between the colonies and the mother country. It was a body of consultation as to the best measures to be devised so to operate upon the British government as to induce a change of their policy, which was fatal to the liberties of the colonies as British dependencies.

In the credentials of each to the next Congress in May, 1775, it appears that wherever a regular government had been restored in any one of the colonies, the deputies were appointed by such government. Where they were not restored, they

were appointed by a convention of deputies appointed by the people of each province, and expressed the will of that province.¹ In this First Congress, as in all subsequent ones down to the adoption of the Constitution of 1789, each colony, or each state (when the colony became a state), had one vote given by its own deputies, and the action of the Congress was therefore the action of a majority of the colonies, and not of a majority of the deputies. It was therefore strictly a Congress of colonies.

§ 124. Judge Story further says: "The Congress of delegates (calling themselves, in their more formal acts, 'the delegates appointed by the good people of these colonies') assembled on the 4th of September, 1774," etc.² This statement is wholly incorrect, and the italics are the author's and are not to be found in the original document. The object of the author is apparent: that is, to represent the delegates in that Congress as calling themselves delegates appointed by "the good people" of these colonies as a unit, and not as delegates of the several peoples of the distinct

The question at issue, to which he attempts a solution favorable to his view, is that the colonies were one Body-politic, of which each colony was but a fraction, as against the view that each colony was a unit, and that it was a Congress of the colonial units, and not a Congress of the whole people embraced within their entire territory. Judge Story declares that the Congress of delegates called themselves, in their more formal acts, "the delegates of the good people of these colonies."

There are six formal addresses issued by this Congress. In but one of these is to be found the expression "the delegates of the good people of these colonies." That is to be found in the address "to the inhabitants of the colonies of New Hampshire, Massachusetts Bay," etc. (naming all but Georgia). It then proceeds: "Friends and countrymen, we, the delegates

appointed by the good people of these colonies to meet at Philadelphia in September last, for the purposes mentioned by our respective constituents, have," etc. Judge Story does not notice that the caption of this address is to the inhabitants of the colonies named separately, and that the words "we, the delegates appointed by the good people of these colonies," could only refer to the colonies who were named in the caption. So that it is a forced construction of this paper which would attribute to the deputies issuing it, a purpose to name themselves as delegates from one people, when they were addressing twelve colonies, from whom they had unquestionably derived their powers; especially when in the same sentence the purpose of their appointment is to be found in the delegation of authority from "our respective constituents."

Taking the whole paper together, therefore, so far from the use of these terms, "appointed by the good people," being construed as evidence of a "one people," from fractional portions of whom these deputies were elected, it would seem to be directly the other way. This is the only case out of the six in which this phrase is used, which by the learned commentator is said to be the mode in which the delegates called themselves in their more formal acts. They have only used it in one, and in the other five formal acts they have omitted it.¹

The great Declaration of Rights, October 14, 1774, opens thus:² "The good people of the several colonies of New Hampshire, Massachusetts Bay," etc. (naming all), "have severally elected deputies to meet," etc.

The association into which the members entered opens thus: "We, his majesty's most loyal subjects and delegates of the several colonies of New Hampshire, Massachusetts Bay," etc. (naming all), and it was signed by each of the deputies opposite to the name of his respective state.

The address to the people of Great Britain in its caption is from "the delegates appointed by the several English col-

The letter to the colony of St. John declares that "the status of America has been considered in a general Congress of deputies from the colonies of New Hampshire, Massachusetts Bay," etc. (naming all); and to the inhabitants of Quebec it is addressed by "the delegates of the colonies of New Hampshire, Massachusetts Bay," etc.

The petition of Congress to his majesty is addressed by "your majesty's faithful subjects of the colonies of New Hampshire, Massachusetts Bay," etc. (naming all), "in behalf of ourselves and the inhabitants of these colonies, who have deputed us to represent them in general Congress,"

It is then obvious that the inference which Judge Story seeks to make from the use of the words "the good people of these colonies," in the more formal acts of the delegates, does not rest on any such authority, but only on one of six or seven distinct acts of that Congress, all the others of which are directly contrary to the inference drawn; and that in one case to which he has referred, the inference which he draws, if all the facts connected with it are taken into consideration, is distinctly negatived.

More stress is laid on this point than perhaps may be necessary, but the statement made by Judge Story as his conclusion from the formal addresses of the Congress seems to have misled the historian von Holst, who, without examining the original documents, has stated the conclusion of Judge Story as if it were a historic fact.

In no Congress from 1774 to 1781 is there a hint in the credentials of any delegate that he represented anything but his own colony, nor is there a symptom of any one ever claiming to represent the people of America, or any other people than the people of each separate colony.

Each colony spoke its own voice through its own deputies � an equal voice with each of the others despite their numerical strength; and Congress but spoke the combined

will of the colonies, for it was a Congress of colonies, and not of deputies from one people.

§ 125. Judge Story maintains that this Congress executed de facto and de jure the sovereign authority in virtue of original powers derived from the people.

Again we must call attention to the equivocal form of expression. No doubt it exercised powers derived from the people. But what people? From the whole of the colonies as one people, � as one civil Body-politic, � or from the people of each and every colony, and therefore derived from all? That is the political question which we are considering. One extraordinary fact must be noted. During the seven years of the Continental Congressional Era Congress never passed a law. It passed resolutions and recommendations, hut only two ordinances, and those merely as to its own internal operations � one to regulate the clothing department; the other, its treasury.

It is true that Congress performed many acts on which reliance is made to show the assertion of its sovereign power as the representative of the colonies as separate Bodies-politic, or of the colonies as constituting one sovereign Body-politic. They formed an association for non-intercourse, but did not enact it. They put the colonies in a state of defense. They raised troops; appointed a commander-in-chief and other general officers; emitted bills of credit, pledging the faith of the thirteen colonies to their redemption, and giving a quota of the payment of each bill to each colony; published a declaration of causes for taking up arms; organized a post-ofiice department. It is asked, how did Congress acquire the power to do these things and many others? Without going too much into detail, a few conclusive observations will suffice.

§126. First. In the First Congress, which sat from September 5th to October 22d, it will be seen that there was no action taken by Congress which was otherwise than advisory. The association which was formed between the members might seem to be an exception to this, but a careful criticism

of that remarkable paper will show that "the delegates of the several colonies of New Hampshire, Massachusetts Bay," etc. (naming all), deputed to represent them in a continental Congress, after reciting the arbitrary acts of the British government, declares that, " to obtain redress of these grievances ... we are of opinion that a non-importation, non-consumption and non-exportation agreement faithfully adhered to, will prove the most speedy, effectual and peaceful measure, and therefore we do, for ourselves and the inhabitants of the several colonies whom we represent, firmly agree, under the sacred ties of virtue, honor, and love of our country, as follows." Then follow a number of declarations of non-intercourse, and then the following conclusion: "And we do solemnly bind ourselves and our constituents under the ties aforesaid, to adhere to this association until" certain acts of Parliament be repealed; and then, "we recommend it to the provincial conventions and to the committees in the respective colonies, to establish such further regulations as they may think proper for carrying into execution this

It is thus clear, from the terms of the association, that it had no legal effect. It was an association of honor between the members of the Congress, binding their constituents "under the sacred ties of virtue, honor, and love of our country," and, far from assuming any paramount sovereignty in the matter, it "recommends to the provincial conventions and to the committees in the respective colonies to establish such further regulations for carrying this association into effect." This refraining from legislative enactment and this appeal to the local authorities of the colonies to execute their voluntary association is at once a denial of the legislative sovereignty of the Congress and a confession of the complete power of the local authorities.

The next meeting of the Congress was May 10, 1775, under a resolution passed by the First Congress, October 22, 1774. By that resolution Congress declared its opinion that another Congress should be held at Philadelphia, and "that

all the colonies in North America choose deputies as soon as possible to attend such Congress."

The Journal of the second session of Congress opens thus: "A number of delegates from the colonies of New Hampshire, Massachusetts Bay," down to South Carolina, "agreeable to their appointment and orders received from their respective colonies." This statement settles adversely the assumption of Judge Story that the members of Congress were not the delegated agents of the governments of the colonies, but represented the original powers of the people. This record states that they sat under the "appointment and orders received from their respective colonies." The authority given to the deputies to this Congress differs in terms from that given for the members of the prior Congress. A summary of each of these will be given in a note.¹

New Hampshire: At the convention of deputies appointed by the several towns in the province aforesaid, etc., voted that John Sullivan and John Langdon "be delegated to represent this province in the continental congress," and "that they and each of them in the absence of the other, have full and ample power in behalf of this province to consent and agree to all measures which said congress shall deem necessary," etc. N. B. � Here is a delegation of power to represent this province, with full power in behalf of this province to consent and agree, etc.

Massachusetts: After reciting that the proceedings of the previous congress had been reported to the provincial congress of Massachusetts and were highly approved, the provincial congress then ap-

pointed five gentlemen, or any three of them, who "are hereby appointed and authorized to represent this colony" in the American congress, "with full power with the delegates from the other American colonies to consent, agree upon, direct and order every measure as shall to them appear to be best calculated," etc. N. B. � Clear appointment and authority to these parties to represent Massachusetts, and with full power to agree upon measures which shall appear best calculated, etc.

Connecticut: The house of representatives of the colony "proceeded to nominate, choose and appoint delegates," and made choice of five gentlemen "to be their delegates, any three of whom are authorized and empowered to attend said congress in behalf of this colony, to join, consult and advise with the delegates of the other colonies in

This summary establishes that in the second Congress the deputies were appointed by diverse methods, but in each case to represent the particular colony appointing the deputies, to act for and on its behalf, and agree to, on its behalf, all

British America on proper measures for advancing the best good of the colonies.'' N. B. � Clear delegation by the colony of full power to its delegates to act on its behalf. New York: Provincial conventions held "for the purpose of appointing delegates to represent the colony of New York" unanimously elected certain gentlemen as "delegates to represent this colony at such congress, with full power to them, or any five of them, to meet the delegates from the other colonies, and to consent and determine upon such measures as shall be adjudged most effectual," etc. N. B. �

Here is clear delegation to its own deputies to represent the colony of New York, and with full power to determine upon such measures as shall be adjudged effectual.

New Jersey: The assembly unanimously resolved that five gentlemen, "or any three of them, be and they are hereby appointed to attend the continental congress of the colonies" in May next, "and that they report their proceedings to the next session of the general assembly." N. B. � Here there is no special power given, but there is an indication that the proceedings of the congress were to be reported back to the general assembly of New Jersey for assent or dissent.

Pennsylvania: The assembly resolved that nine gentlemen "be and they are hereby appointed deputies on the part of this province"

to attend the general congress, "unless the present grievances of the American colonies shall, before that time, be redressed." N. B. � Here there is clear delegation of power to the deputies to act or. the part of Pennsylvania, but there is no statement as to power, it seeming to be supposed that there might be no necessity for the meeting.

Delaware: The assembly named three gentlemen "who are hereby appointed and authorized to represent this government at the American congress" ... with full power to them, or any two of them, together with the delegates from the other colonies, to concert and agree upon such further measures as shall appear best calculated ... and that they report their proceeding to the next session of the general assembly. N. B. � Clear authority to represent Delaware, with full power to agree upon any measures, but with the requirement to report back their proceedings to the general assembly.

Maryland: Deputies appointed by the several colonies of the counties of Maryland resolved that seven gentlemen, "or any three or more of them, be delegates to represent this province in the next continental congress, and that they, or any three or more of them, have full and ample power to consent and agree to all measures that such congress shall deem necessary." N. B. � Clear delegation to represent

measures which might be concerted between its own deputies and the deputies of the other colonies in Congress, and that there was unlimited power given by each province to its deputies to bind that province, except in one or two cases where it appears that the authorities of the province appointing the deputies required a report of the proceedings back to that province.

One thing is settled beyond question: that the dogmatic statement of Judge Story, that "the Congress thus assembled exercised de facto and de jure a sovereign authority; not as the delegated agents of the governments de facto of the colonies, but in virtue of original power derived from the people," is wholly unsustained, and is completely refuted by the facts.

Virginia: A convention of delegates from the counties and corporations in the colony of Virginia proceeded "to the election of delegates by ballot to represent this colony in general congress," and seven gentlemen were chosen for that purpose. N. B. � Clear statement that the delegates were the representatives of Virginia, with no limitation on their powers.

North Carolina: At a general meeting of the delegates of the inhabitants of this province in convention, three gentlemen were "appointed delegates to attend the general congress ... and they are hereby invested with such powers as may make any acts done by them, or any of them, or consent given in behalf of this province, obligatory in honor upon every inhabitant thereof." And in the assembly of North Carolina a resolution was passed approving of the proceedings of the first congress, and binding themselves to adhere

to the resolutions of that congress. N. B. � Here there is clear delegation to its deputies to act in behalf of North Carolina, and make the acts so done by them obligatory upon the people of North Carolina, and sanction is given to what had been done in the first congress.

South Carolina: In the commons house of assembly satisfaction was expressed with the action of their delegates in the first congress, and they named and appointed the same five gentlemen "deputies for and in behalf of this colony, to meet," etc...."with full power and authority to concert, agree to, and effectually prosecute such measures as in the opinion of the said deputies shall be most likely," etc. N. B. � This action by the commons house of assembly was confirmed by the provincial congress of South Carolina, who appointed the same gentlemen to represent that colony, with full power to concert, agree upon, etc.

Second. A very striking fact, confirmatory of these views, is found in the case of Georgia, in which it was conclusively shown that no one was admitted to full participation in the proceedings of the Congress unless he was a delegate of a colony.¹ This seems to settle the point that, for all official action of Congress, it was a Congress of colonies, and not of deputies of the people without reference to their colonial relation.

Subsequently, September 13th, the province of Georgia appointed several gentlemen "to take their seats as representatives of the province of Georgia, to do, transact, join and concur with the several delegates from the other colonies and provinces in all matters and things that shall appear eligible and fit," and pledging that "Georgia will abide by and carry into execution whatsoever our said delegates, or any three of them, shall determine and resolve upon."

Third. No action of importance was taken by Congress at any time which was not dependent in a large degree for its real effect upon the will of the separate colonies.

Fourth. In many if not in most cases, the separate colonies, by subsequent action, approved and ratified what Congress hud previously done, or so acquiesced in it that a remarkable letter was written by Congress in 1779, justifying much of its action upon that ground, and on the separate sanction given by each colony to the terms of the Declaration of Independence after it was adopted, which formally gave to Congress the use of the needful means of war, treaty-making, etc., to sustain, the independence so declared.²

¹ A delegate from the parish of St. John's, Georgia, presented his credentials, when it was "agreed unanimously that he be admitted as a delegate from the parish of St. John's, in the colony of Georgia, subject to such regulations as the congress shall determine relative to his voting." 1 Journals of Congress, p. 91. Subsequently the question arose whether he could be ad-

mitted to vote. He admitted that he did not represent a colony, but only a part, and therefore did not insist on giving a vote as a colony, but was content to hear and assist in the debates and to give his vote in all cases, except when the sentiment of congress was taken by colonies.

Fifth. Up to the Declaration of Independence, July 4, 1770, the action of Congress could not have been otherwise than as the representatives of the colonies, for they were seeking only, as was amply declared in all their proceedings, to restore the relations of the colonies as they had previously existed to the crown of England. To suppose, therefore, that the action of the colonies, or of the people of the country in forming a Congress, was to constitute a new colonial political existence, in which the thirteen colonies were merged in one, would be totally at war with the purposes of the whole movement. The colonies, therefore, as dependencies of the crown, and they alone, could act in this movement for the restoration of friendly relations between the crown and the colonies. In the declaration for the causes and necessity for taking up arms, they expressly declare, "Lest this declaration should disquiet the minds of our friends and fellow-subjects in any part of the Empire, we assure them, that we mean not to dissolve that union which has so long and so happily subsisted between us, and which we sincerely wish to see restored ... we have not raised arms with ambitious designs of separating from Great Britain and establishing independent states."

When it was finally determined to enter upon a war for the defense of colonial rights, George Washington, on the 15th of June, 1775, was unanimously elected General to command all the forces raised or to be raised for the defense of American liberty, with the pay of $500 per month.¹ His memorable reply, in which he assumed the trust but declined the pay, only asking to keep an exact account of his expenses, which was all he desired to be paid, will be found in the proceedings of Congress. The commission to him is from the delegates of the united colonies of New Hampshire, Massachusetts Bay, etc., down to South Carolina.

The oath of office was prescribed in this form: "I do acknowledge the thirteen united states of America, namely, New Hampshire, Massachusetts Bay," etc., down to Georgia, ¹1 Journals of Congress, pp. 111, 112.

"to be free, independent and sovereign states, and declare that the people thereof owe no allegiance or obedience to George III., King of Great Britain ... and I do swear that I will, to the utmost of my power, support, maintain and defend the said United States against the said George

Sixth. Congress, in making rules and orders for the navy of the united colonies, declared: "The commanders of all ships and vessels belonging to the thirteen united colonies," etc., indicating the joint right of property by the thirteen

§ 127. Again, upon the emission of bills of credit, it was resolved "that the thirteen united colonies be pledged for the redemption of the bills of credit so directed to be emitted; that each colony provide ways and means to sink its proportion of said bills," etc.; showing that the thirteen colonies, as such, were responsible for the bills, and that each assumed its proportion and quota of such bills and levied taxes for the purpose of raising the same. Congress had no power of taxation and, therefore, did not pledge itself, but pledged its constituents, the thirteen colonies, as its

Again, Congress, on the 24th of June, 1776, resolved: "That all persons abiding within any of the united colonies and deriving protection from the laws of the same, owed allegiance to the said laws and are members of such colo-

nies, and that all persons passing through," etc., owed allegiance thereto; "that all persons members of, or owing allegiance to any of the united colonies, as before described, who shall levy war against any of the aforesaid colonies within the same ... are guilty of treason against such

"That it be recommended to the legislatures of the several united colonies to pass laws for punishing in such manner as to them shall seem fit, such persons afore described as shall be proved attainted of such deed of treason before

These resolutions of Congress define treason as a crime against each colony, but affirm no such crime against the

united colonies; and, furthermore, hold no inherent power in Congress to punish any such act of treason, and apply to each colony as the only power that can do so.¹

Congress further resolved "that it be recommended to the several legislatures of the united colonies, to pass laws for punishing persons who shall counterfeit, or aid or abet in counterfeiting the continental bills of credit," etc.; thus indicating the absence of power in Congress to punish the counterfeiting of bills of credit issued by its own orders, and appealing to the supreme power of each colony to do what it avowed it could not do itself.² It also asked each colony to punish the destruction of continental magazines.³ On the 5th of July, after the Declaration of Independence had been adopted, it resolved "that it be recommended to the assemblies, conventions, or councils of safety of Virginia, North and South Carolina to permit the raising troops within their respective states," etc.; thus disclaiming the power itself to raise troops in these colonies without the permission of each colony by its own authority.⁴

On the 27th of December, 1776, Congress vested in General Washington very great powers, authorizing him to raise troops, "to arrest and confine persons who refuse to take the continental currency, or are otherwise disaffected to the

American cause, and return to the states of which they are citizens, their names and the natures of their offenses, together with the witnesses to prove them." By which it was indicated that, while General Washington should have the power to arrest, the power to try and punish was vested only in the state of which the person accused was a citizen. The Congress, while exercising this power to enlarge that of General Washington, prepared a circular letter to the several united states to explain the reasons for doing so, and requesting the states to co-operate with him and give

him all the aid in their power. This procedure was obviously taken by Congress in the hope that none of the colonies would condemn the action of Congress in so doing, and such a hope is entirely at variance with the idea of self-assertion of sovereign power.

Seventh. The resolution of October 14, 1774, in which Congress asserted so clearly and distinctly the original authority of each colony as a distinct Body-politic, is utterly at variance with the theory of Judge Story and others, that congress assumed a sovereignty, de facto or de jure, for itself, and did not depend entirely upon the authority which in these resolutions they clearly assorted for each colony.

Eighth. Much stress has been laid upon the fact that several of the colonies formed governments upon the suggestion of Congress. To understand this action, it must be remembered that Congress was made the organ of all the colonies for consultation and for arriving at a common decision upon the action of each and all in achieving a common safety from a common danger. It was natural, therefore, that no colony would undertake a new step in advance of its sister colonies, without regard to the opinion of the other colonies with whom it was in consultation.

Hence, in the case of Massachusetts, where the original colonial government had been overthrown, its provincial convention addressed a letter, May 16, 1775, to Congress, stating the difficulties they labored under for want of a regular form of government, "and requesting Congress to favor them with explicit advice respecting the taking up and exercising the powers of civil government, and declaring their readiness to submit to such a general plan as the Congress may direct for the colonies," etc.¹

Congress came to the following resolution: ..." in order to conform as near as may be to the spirit and substance of the charter, it be recommended to the provincial convention, to write letters to the inhabitants of the several places which are entitled to representation in assembly, re-¹1 Journals of Congress, p. 105.

questing them to choose such representatives, and that the assembly when chosen do elect councillors; and that such assembly or council exercise the powers of government until a governor of his majesty's appointment will consent to govern the colony according to its charter." It is obvious that this was a request for advice by Massachusetts, and that the advice was not mandatory, but merely recommendatory.¹

New Hampshire, through its delegates in Congress, asked of Congress advice and direction in the same matter,² and Congress, on the 3d of November, 1775, resolved "that it be recommended to the provincial convention of New Hampshire to call a full and free representation of the people."³

A like recommendation was made to South Carolina.⁴Many of the states, without respect to any advice from Congress, took action in this matter of establishing a government for the states.

North Carolina, in April, 1776, took such steps, and its government went into effect December, 1776.

Connecticut, early in 1776, declared its form of government, and that it was a free, sovereign and independent State; and so Rhode Island, in May, 1776, and New Jersey in July, 1776. And in April, 1776, Massachusetts changed the style of judicial writs, which had issued in the name of George III., to the name "the people and government of Massachusetts."

§ 128. In the State of Virginia the case was peculiar. Lord Dunmore assembled the regular general assembly in March, 1775, which, after several adjournments, on the 6th day of May, 1776, in Williamsburg, met and declared that it was their "opinion that the people could not now be legally represented according to the ancient constitution, which had been subverted by the king, lords and commons of Great Britain, and consequently dissolved, they unanimously dissolved themselves accordingly." Its members then assem-

bled as a convention of the people. Judge St. George Tucker says: "It was a great body of people assembled in the persons of their deputies to consult for the common good, and to act in all things for the safety of the people."¹ It assembled in May, 1776. On the 15th day of May this convention made a solemn declaration,² and came to several

² "For as much as all the endeavors of the united colonies, by the most decent representations and petitions to the king and parliament of Great Britain to restore peace and security to America under the British government and a re-union with that people upon just and liberal terms, instead of a redress of grievances, have produced, from an imperious and vindictive administration, increased insult, oppression, and a vigorous attempt to effect our total destruction. By a late act of parliament all the colonies are declared to be in rebellion, and out of the protection of the British crown, our properties are subjected to confiscation, our people when captivated, compelled to join in the murder and plunder of their relations, and countrymen, and all former rapines and oppression of Americans declared legal and just: fleets and armies are raised, and the aid of foreign troops engaged to assist their destructive purposes. The king's representative in this colony, hath not only withheld the powers of government from operating for our safety, but having retired on board an armed ship, is carrying on a piratical and savage war against us,

tempting our slaves by every artifice to resort to him, and training and employing them against their masters. In this state of extreme danger we have no alternative left but abject submission to the will of those overbearing tyrants, or a total separation, from the crown and government of Great Britain, uniting and exerting the strength of all America for defence and forming alliances with foreign powers for commerce and aid in war. Wherefore, appealing to the Searcher of Hearts for the sincerity of former declarations, expressing our desire to preserve the connection with that nation, and that we are driven from that inclination by their wicked councils and the eternal laws of self-preservation;

delegates appointed to represent this colony in general congress, be instructed to propose to that respectable body to declare the united colonies, free and independent states, absolved from all allegiance to, or dependence upon the crown or parliament of Great Britain: and that they give the assent of this colony to such declaration and to whatever measures may be thought proper and necessary by congress, for forming foreign alliance, and a confederacy of the colonies at such

resolutions thereupon. This extraordinary and first Declaration of Independence, in which the State of Virginia declared that there was "no alternative left but abject submission to the will of those overbearing tyrants, or a total separation from the crown and government of Great Britain," declared for the "total separation," and instructed their delegates to make such a declaration as to all the States, and to "give the assent of this colony to such declaration, and to whatever measures may be thought proper and necessary by Congress for forming foreign alliance, and a confederacy of the colonies," with the proviso, "that the power of forming governments for, and the regulations of the internal concerns of each colony, be left to the respective colonial legislatures." And by the last resolution steps were taken to frame a "declaration of rights, and such a plan of government" for the colony.

Virginia's Bill of Rights was adopted June 12, 1776, and her Constitution on the 29th of June, 1776, five days before the Declaration of Independence. In the preamble to this Constitution, drawn by Mr. Jefferson, substantially the same grounds for independence are stated as in the general Declaration of Independence. In both of these important papers she assumed all power of government, her succession to the crown, rights of escheat, settled the territorial questions between herself and neighboring states, elected her governor and other officers, who, on the 5th of July, 1776 (when the general Declaration could not have been heard of), took the oath of official fidelity to the Commonwealth of Virginia. All writs were to issue in the name, and indictments to conclude against the peace and dignity, of the Commonwealth

time and in such manner, as to them shall seem best; provided that the power of forming governments for, and the regulations of the internal concerns of each colony, be left to the respective colonial legislatures. "Resolved unanimously, that a

committee be appointed to prepare a declaration of rights, and such a plan of government as will be most likely to maintain peace and order in this colony, and secure substantial and equal liberty to the people." Tucker's Blackstone, vol. I, Appen., pp. 89, 90.

of Virginia. In the same year she passed an act prescribing an oath of allegiance to the Commonwealth of Virginia as a free and independent state.¹ It so happened that on the 10th and 15th of May, 1776, Congress passed a preamble and resolution recommending to all the colonies to form governments, but it never claimed power to direct it, or to control it, or supervise the action taken by any colony.²

This review of the public acts of Congress and the states during this continental era proves the recognition by Congress of all real power of government in each of the colonies; its own conscious inability to carry out its will, and its dependency on the separate sovereignty of the states. It could not punish the forgery of its own bills, nor the destruction of its own magazines; nor did it claim that treason was possible against itself, or against any government save that of the several colonies. In fact, in its famous declaration of October 14, 1774, it had claimed no power, but had only declared the supreme and exclusive authority of each colony. The autonomy of each colony or state to regulate exclusively its own internal government was asserted by each colony and never questioned by Congress, and the whole action of Congress, which is claimed to have been upon the self-assertion of sovereignty, de facto and de jure, is shown by all the facts of history to have been based upon powers vested by each separate colony in its deputies to confer with the deputies from other colonies, and agree upon concerted action for the benefit of all, with the concurrence of all thus given.

One further remark may here be made. In the resolutions of October 14, 1774, the only power that was asserted for Parliament was the power of regulating commerce between the colonies on the one hand and the mother country and the world on the other. Upon the Declaration of Independence this power, which had not belonged to the

powers of the separate colonies, might have been supposed to have devolved upon the united colonies or states, but no such claim was ever made by Congress or conceded by the colonies. Even this imperial power over commerce devolved, upon the severance of the bond between the mother country and the colonies, upon each colony as a part of its own sovereignty. But Judge Story, as the leader of the school of political writers whose views we are considering, has declared that the Declaration of Independence was "an act of paramount and sovereign authority;" was the "act of the whole people of original inherent sovereignty by the people themselves ... by the good people of these colonies."^l

§ 120. Let us consider this proposition. If Judge Story meant by this all the people of the United States, because the people of every state united in it, we should not deny but affirm the statement; but if he meant that it was the act of one Body-politic, of which the colonies were but fractional parts and not the multiple of thirteen colonies, of which each colony was a distinct unit, the theory is false and wholly unsupported by any historic facts, but is contradicted by all. A most interesting account of the debates leading to the Declaration of Independence was given by Mr. Jefferson to Mr. Madison, and published by the latter. They are in Mr. Jefferson's own handwriting, and will be found in "The Madison Papers," vol. I, page 9 et seq.

On the 7th of June, 1770, Richard Henry Lee, one of the delegates from Virginia, in obedience to her instructions and on behalf of the delegates from Virginia, moved: "That the Congress should declare that these United Colonies are, and of right ought to be, free and independent States; that they are absolved from all obedience to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved; that measures should be immediately taken for procuring the

assistance of foreign powers, and a Confederation be formed to bind the Colonies more closely together."^l The resolutions of instruction have already been given.² The substance of the debates is given by Mr. Jefferson and also by Pitkin.³ Mr. Jefferson says it was argued by those opposed to the measure:

"That the people of the middle colonies, Maryland, Delaware, Pennsylvania, the Jerseys and New York, were not yet ripe for bidding adieu to British connection, but that they were fast ripening and in a short time would join in the general voice of America: ... that some of them had expressly forbidden their delegates to consent to such a declaration, and others had given no instructions and consequently no power to give such consent: that if the delegates of any particular colony had no power to declare such colony independent, certain they were, the others could not declare it for them, the colonies being as yet perfectly independent of each other: ... that it was probable that the Pennsylvania convention, the convention of New York and those of the Jerseys and Delaware, would take up the question of independence and would declare to their Delegates the voice of their state: that if such a declaration should now be agreed to, these delegates must retire, and possibly their colonies might secede from the Union: that such a secession would weaken us more than could be compensated by any foreign alliance.... On the other side, it was urged by J. Adams, Lee, Wythe and others, that no gentleman had argued against the policy, or the right of separation from Britain, ... that they had only opposed its being now declared: that the question was not whether by a Declaration of Independence we should make ourselves what we are not, but whether we should declare a fact which already exists: that as to the people, or parliament of England, we had always been independent of them, their restraint on our trade deriving efficacy from our acquiescence

only, and not from any rights they possessed of imposing them, and that so far our connection had been federal only, and was now dissolved by the commencement of hostilities: that as to the king, we had been bound to him by allegiance, but that this bond was now dissolved by his assent to the late act of parliament, by which he declares us out of his protection, and by his levying war on us, a fact which had long ago proved us out of his protection; it being a certain position in law that allegiance and protection are reciprocal, the one ceasing when the other is withdrawn: ... that the delegates from the Delaware counties, having declared their constituents ready to join, there are only two colonies, Maryland and Pennsylvania, whose Delegates are absolutely tied up, and that these had, by their instructions, only reserved a right of confirming or rejecting the measure."¹ ... Mr. Jefferson proceeds to state, that "it appearing from the course of these debates, that the colonies of New York, New Jersey, Pennsylvania, Delaware and Maryland were not matured for falling from the parent stem, but that they were fast advancing to that state, it was thought most prudent to wait a while for them, and to postpone the final decision to the1st of July."²

In the meantime a committee was appointed to prepare a declaration. Committees were also appointed to prepare a plan of confederation for the colonies, and to state the terms proper to be proposed for foreign alliance. The Declaration of Independence drawn by Jefferson was reported to the House June 28th, and on the 1st of July the House went into committee of the whole and resumed consideration of the original motion made by the delegates from Virginia, which on the next day was carried in the affirmative by the votes of nine states.

South Carolina and Pennsylvania voted against it. Delaware, with but two members present, was divided. The delegates from New York declared themselves for it, but

were not justified in voting upon either side until they heard from their convention. South Carolina changed its vote and then concurred in voting for it. Three members from Delaware arrived and turned the vote of that colony in favor of the resolution. Members of different sentiments from Pennsylvania changed its vote. "So that the whole twelve colonies, who were authorized to vote at all, gave their votes for it." Within a few days the convention of New York approved of it, and her delegates cast their vote for it. The debate on the Declaration closed on the evening of the 4th of July, when it was reported by the committee, agreed to by the House, and signed by every member except Mr. Dickinson. Mr. Pitkin gives the action of the different colonies on this point.¹

§ 130. North Carolina on the 22d of April empowered her delegates in Congress to declare for independence. So the general assembly of Massachusetts on the 23d of May. So also the assembly of Rhode Island in May directed that the oath of allegiance to the colony be taken, and instructed their delegates in Congress to join with the other colonies for promoting the confederation between the colonies, making treaties with foreign powers, taking care to secure to Rhode Island all powers of government relating to its internal police, and conduct of affairs, civil and religious. New Hampshire, on the loth of June, and Connecticut on the 14th of June, and New Jersey on the 21st of June, instructed their delegates in Congress to assent to a declaration of independence. Pennsylvania, in June, authorized its delegates to form "such federal compacts between the united colonies and treaties with foreign powers as shall be necessary, reserving to the people of this colony the sole and exclusive right of regulating the internal government and police of the same." They afterwards, on the 24th of June, agreed to a declaration that the united colonies were free and independent states. And the convention of New York on the

9th of July sanctioned the Declaration of Independence, and instructed their delegates to co-operate in its passage.¹

It thus appears that the Declaration of Independence was a declaration made by the colonies, not as one people, but by the several colonies as distinct peoples, through their delegates in Congress, under the instructions of the conventions or assemblies of the several colonies.

It was considered by Congress on all hands that a majority vote in Congress could not bind a colony that did not separately consent to it; that to attempt such a thing would have resulted in the secession of such colonies from the union; that it was therefore the united declaration of thirteen distinct colonies, and not the declaration of one people by a majority vote, controlling every colony despite its dissent. It gained its authority from each separate colony authorizing its delegates to assent thereto. The whole proceeding excluded the idea of any paramount sovereignty of Congress as the potential representative of one civil Body-politic, divided into thirteen subordinate provinces. The terms of the Declaration confirm this view. They are as follows: "We, therefore, the representatives of the UNITED STATES OF AMERICA, in GENERAL CONGRESS assembled, ... do, in the name and by authority of the good people of these colonies, solemnly publish and declare that these united colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as FREE AND INDEPENDENT STATES, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which INDEPENDENT STATES may of right do."

It will be perceived that this is a declaration that the united colonies are, � not shall be, but are, � free and independent states, � not a free and independent state, but the multiple of thirteen units; and this is made more palpable ¹2 Journals of Congress, p. 250.

by the statement that all connection between them and the state of Great Britain is totally dissolved. In other words, they declared, as the advocates of the Declaration said in debate, "a fact which already existed, � an independence of Great Britain by each and all the colonies prior to the general Declaration." This Declaration therefore proved that the independence of each state preceded the Declaration and was not consequent upon it. The facts already stated in reference to the action of the states prior to the final adoption of the Declaration are conclusive upon this point. Virginia, indeed, had adopted its Constitution and established its permanent government five days before the Declaration was made.

That this Declaration was the combined Declaration of the several colonies is proved by an important letter addressed to their constituents by the Congress of the United States on the 13th of September, 1779,¹ in which the congress vindicated all of its action by claiming that all of the acts of Congress had been ratified and sanctioned by the several colonies by laws passed by their respective legislatures. Congress also claimed that the credentials of the different delegates who composed the Congress in 1774-76 had given power to Congress to do the things which it did, for obtaining a redress of grievances, and that on the 4th of July, 1776, "your representatives in Congress did, in the name of the people of the thirteen united colonies, declare them to be free and independent states. ..." Was ever confederation more formal, more solemn or more explicit? It has been expressly consented to and ratified by every state in the Union.²

² That this was done will appear in reference to every state but Georgia, in the American Archives. As to New York, Series 5, vol. 1, p. 1391; New Jersey, Series 5, vol. 1, p. 389; Pennsylvania, Series 5, vol. 2, p. 10; Maryland, Series 5,

vol. 3, p. 89; Connecticut, Id., p. 447; South Carolina, Id., p. 7; Rhode Island, Series 5, vol. 1, p. 475; Delaware, Id., p. 617; Massachusetts, Id., p. 1225; North Carolina, Id., p. 1365; Virginia, Id., p. 464; New Hampshire, Id., p. 428.

These statements by the Congress are emphatic denials of any original power in Congress, and a clear affirmation that all power exercised by it, including the Declaration of Independence, was by the express assent, sanction and ratification of every state in the Union. In truth, so far from claiming original sovereignty in itself, it maintains that its powers were derived from an actual confederation between the states, solemnly and explicitly assented to by each and every state. When, therefore, Judge Story relies upon the phrase in the Declaration, "that the representatives in the name and by authority of the good people of these colonies," as indicating one sovereignty, de facto and de jure, it is a claim which is condemned by all the facts in the case.

If there was one sovereignty existent in Congress, de facto and de jure, why did it delay its Declaration until the fractions could be heard from? Why did not the passage of the Declaration by the will of the majority bind the minority even against their consent? The fact that on all hands it was admitted this could not be done is a conclusive negation of the hypothesis of the learned commentator. And why should the one people declare the freedom and independence of many states? If the united colonies were one free and independent state, of which the colonies were but fractions, why did the Declaration affirm that "the thirteen colonies are, and of right ought to be, free and independent states?"

§ 131. The point has sometimes been made that the Declaration of Independence is entitled: "A Declaration by the Representatives of the United States of America in Congress Assembled," and it is sought to show thereby that it is a Declaration of the representatives of the United States, excluding the idea of its being a Declaration by the separate States. It is interesting to see that this form was the one adopted in the draft by Mr. Jefferson, and it is inserted in the open Journal and is thus signed: "Signed by order and

in behalf of the Congress, John Hancock, President." The paper signed was engrossed by order of Congress.

On the "Secret Journal of Congress, Domestic Affairs," the following resolution was passed, July 19, 1776:

"Resolved, That the Declaration passed on the 4th be fairly engrossed on parchment, with the title and style of ' The Unanimous Declaration of the Thirteen United States of America,' and that the same, when engrossed, be signed by every member of Congress." On August 2, 1776, "The Declaration of Independence being engrossed and compared at the table, was signed by the members."

The engrossed copy is on parchment and its heading follows the language of the "Secret Journal:" "In Congress, July 4th, 1776. The Unanimous Declaration of the Thirteen United States of America."¹ This shows that the Congress deemed it wise to change the terms of the heading upon the original Declaration to that in which it would appear to be the unanimous declaration of the Thirteen States.

In the great case of Ware v. Hylton,² Judge Chase says: "On the 4th of July, 1776, the United States in Congress assembled declared the thirteen united colonies free and independent States; and that as such they had full power to levy war, conclude peace, etc.... I consider this as a declaration, not that the united colonies jointly, in a collective capacity, were independent States, etc., but that each of them was a sovereign and independent State, that is, each of them had a right to govern itself by its own authority and its own laws, without any control from any other power upon earth."³

Patterson said: "Before the articles of confederation were ratified, or even formed, a league of some kind subsisted among the States.... The States, when in Congress,

stood on the floor of equality; and until otherwise stipulated, the majority of them must control."¹

In the case above referred to, Judge Iredell said: "Under the British government, and before the opposition to the measures of the parliament of Great Britain became necessary, each province in America composed, as I conceive, a Body-politic, and the several provinces were no otherwise connected with each other than as being subject to the same common sovereign. Each province had a distinct legislature, a distinct executive subordinate to the king, a distinct judiciary, and in particular the claim as to taxation, which began the contest, extended to a separate claim of each province to raise taxes within itself; no power then existed or was claimed for any joint authority on behalf of all the provinces to tax the whole."²

All judges in that case agreed that the powers of Congress were "derived from the people of each province," � conveyed by each Body-politic separately, and not by all jointly, and that Congress had no power not given; that the powers were given by the credentials to the delegates, or by subsequent ratification, and that the States were sovereign, saving only the powers they had delegated to Congress.

§ 132. But the theory of the learned commentator runs counter to another fact in the history of this era.

In the summer of 1775, Dr. Franklin submitted to Congress articles of confederation and perpetual union among the colonies, which were never finally acted upon. It declared that the colonies enter into a firm league of friendship with each other; that each colony was to retain its own laws, etc.; that Congress was to have the power of determining on war, peace, alliances, etc.; that the common treasury was to be supplied by each colony, and the taxes to be laid and levied by each colony. The confederation to be approved by the several provincial conventions or assemblies, and to continue until reconciliation with the mother country be agreed to. If such reconciliation were restored, the colonies

were to return to their former connection with Great Britain, but on failure thereof, the confederation was to be perpetual.¹

As we have seen, Virginia, New Jersey, Maryland, New York and others instructed their delegates to give their assent to a confederacy of the colonies;² many of them qualifying their assent by reserving internal regulation to their respective legislatures. Congress, as we have seen, entered on this plan, suggested by the Virginia delegates, June 11, 1776, and, after debating it with great fullness, matured it finally November 15, 1777, and submitted it to the legislatures of the respective States for their ratification, declaring in its terms that until ratified by each and all it was binding on none.

If the colonies on the 4th of July, 1776, were, as claimed by Judge Story, a paramount sovereignty, � a sovereignty de facto and de jure, � a one people, � supreme over all the colonies, where was the necessity of forming a confederacy? Who ever heard of a sovereignty forming a confederation between the territorial fractions of which it was composed? And if sovereign, why abdicate its paramount sovereignty for the imbecility of a federal government? And if the united colonies constituted a sovereignty, what right had a State to reserve internal government for itself from the hands of its absolute sovereign? And yet Congress, by the hypothesis of Judge Story, clothed with absolute and paramount authority, was urging the adoption of this feeble confederation upon the provincial fractions into which it was subdivided to supersede its sovereignty.

Confessedly without power to tax, Congress was utterly at the will of the States, � a sovereign at the feet of its subordinate provinces! Every historian of the period described the confederation subsequently formed as so helpless and feeble that, but for the French alliance, we should have lost our independence; and yet this confederation was the de-

sideratum which Congress was urging upon the States to supersede its pre-existent authority, which Judge Story claims was supreme; and surely no one has stated more powerfully the imbecility of the subsequent confederation than Judge Story himself.¹ The historic facts which we have heretofore presented prove the impotence of the confederation between the colonies prior to the adoption of the Articles of Confederation. The hypothesis of Judge Story, however, attributes to it omnipotence; leading to this extraordinary result if admitted: asserted omnipotence deliberately seeking a paralysis of its powers and producing a condition of administrative weakness in order to achieve an independence which was the desire of every patriotic heart!

In Martin v. Waddell,² Chief Justice Taney delivered the opinion of the court, in which Judge Story concurred. He said: "For when the Revolution took place, the people of each State became themselves sovereign, and in that character held the absolute right to all their navigable waters and the soil under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government."

President Lincoln in his message July 4, 1861, makes this statement, which has been quoted as authoritative:³ "The States have their status in the Union, and they have no other legal status. The Union is older than any of the States, and in fact it created them as States. Originally some independent (i. e., independent of one another) colonies made the Union; and, in turn, the Union threw off their old dependence for them, and made them States such as they are. Not one of them ever had a State Constitution independent of the Union."

When it is said that "the Union is older than any of the States," it is important to analyze the statement in order to show its fallacy. It is conceded that the Union is not older

¹1 Story on the Constitution, ch. 4. ²16 Pet. 410. See in accord, Pollard v. Hagan, 3 How. 212.

than the colonies; that colonies, who were independent, made the Union. The union of the colonies, it is true, then, is older than the colonies in their status of statehood; but as the union of colonies resulted from the pre-existence of the colonies, was a union of States also consequent upon a pre-existing statehood? The united colonies were consequent upon their independence; the United States were also consequent upon the pre-existence of the States as such. When it is said that the Union created the States, the fallacy of the proposition is exposed by recurring to the facts we have already so fully presented; and the assertion that not one of them ever had a State Constitution independent of the Union is met by the indubitable fact that Virginia, at least, had declared herself to be a free, sovereign and independent State, and adopted her Constitution on the 29th of June, 1776, before the united colonies, under the instructions of this same Virginia, made "the unanimous Declaration of the Thirteen United States of America."

The colony was the embryo state, entirely sovereign as to its internal polity, except as it was subject to its dependence upon England. When any colony severed the tie of its dependence on England, it became a sovereign commonwealth, or state. The union of all the colonies in making a unanimous declaration of what each in fact was, prior to the Declaration, � not what they were to be by virtue of the Declaration (as was declared in debate),¹ � shows that the States were not made by the Declaration, but that the Declaration merely published the pre-existence of the States, whose freedom and independence was thus declared.

That the word "colony" and the word "state" were thus held to be synonymous, or only differing in the fact that the one was an embryo Body-politic and the other a complete Body-politic, will appear from the resolution of Congress, in which the words "United Colonies," wherever used in commissions or other instruments, should be changed to the words "United States."²

In concluding the discussion of this Era, if some one should ask, where did Congress get the power to make the French alliance and other treaties, and to exercise other authority, the answer may be given:

First. By the special and general powers conferred upon Congress in the separate credentials of the delegates of the several colonies.

Second. In the resolutions already cited, giving the assent of each colony to the Declaration of Independence and to the power of Congress to form alliances, by the several colonies.

Third. In their separate consent and sanction to the Declaration of Independence itself, which asserted that power.

Fourth. This is confirmed as to the treaty with France, which was proclaimed by the Congress of the United States on behalf of New Hampshire, Massachusetts, etc., all named down to Georgia, "by the grace of God sovereign, free and independent," etc., purposed to be "between the most Christian King and the Thirteen United States of North America, to wit: New Hampshire, Massachusetts Bay," etc., naming all. This was in 1778.¹

§ 133. During the Era of the Continental Congress there was an actual confederation or league between the States, not formulated in writing, but which was evidenced by the credentials, resolutions and other acts of the different States granting powers to Congress, or ratifying and sanctioning those which may have been exercised by Congress from time to time.

The Articles of Confederation which were discussed in the Congress and were finally adopted by Congress November 15, 1777, were submitted at that time to the different States for their ratification. This order of Congress says:² "These

Articles shall be proposed to the legislatures of all the United States to be considered, and if approved of by them, they are advised to authorize their delegates to ratify the same in the Congress of the United States; which being done, the same shall become conclusive."

This order of Congress conclusively shows that Congress had no right officially to adopt the Articles. Congress proposed them to the legislatures of the States, who gave them their legal sanction by their separate and independent ratification, and without the unanimous sanction of all the States it would not be binding between them. It will be remembered that up to this time all votes in the Congress were taken by States, and not by the number of delegates. It was a Congress of States, not of men.

By the new Articles of Confederation, article 9, it was provided that under these Articles Congress could not do certain things named in the Articles, unless nine States assented to the same. The purpose of this provision was to make the element of numerical strength of the States voting more potential in the decision of very important questions than it had been where a majority of States, who might be the smallest, were potential to pass every measure.

During the discussion of these Articles in Congress, it was again and again proposed to change the rule by which each State should have one vote, but the proposition was uniformly defeated; and when the provision was made by the ninth Article that nine States should be required to pass certain important measures named in that Article, the larger States proposed this amendment: "Provided, that the nine States so assenting shall comprehend a majority of the people of the United States, excluding negroes and Indians."

This amendment, which was suggested by the jealousy of the more populous States toward the small States, was rejected: ayes, one State; noes, nine States.

Now when (taking the census of 1800 as an index of population) nine States, with a population of 1,600,000, could

thus control four States with 2,100,000; and when in other cases where a majority of States alone could pass a measure, a majority of States with a population of a million could thus out-vote States with 2,800,000; when the power of a majority of the people of the United States was denied by a vote of nine States to one in Congress, it would seem that the idea of a paramount and sovereign Body-politic (called the United States) was derisively ignored and repudiated, even in Congress itself; nor must it be forgotten that before the Articles were adopted a majority of States always decided action, and thus if seven States representing one million people voted for a measure and six States representing 2,800,000 voted against it, it passed; or, if 2,800,000 (six States) voted for and the 1,000,000 (seven States) voted against a measure, it failed.

This fact is potential to show that States, not men, were represented in the Congress prior to 1781, and afterwards in that new Confederation, and that the theory of the one civil Body-politic, composed of fractional constituents, had no historical existence, either under the Continental Congress or in the Congress established by the Articles of Confederation.

But further: It was the anxious desire of Congress to have these Articles adopted, as essential to the maintenance of the

revolutionary struggle, and the final achievement of our independence. This anxiety proves beyond controversy that the vague and indefinite powers of Congress prior to the ratification of the Articles of Confederation were deemed by Congress itself to constitute too small a measure of authority to achieve the great purpose for which it was constituted. This being the case, if Congress was sovereign, de facto and de jure, what was the obstruction to the adoption of the Articles from November, 1777, to March, 1781? This delay can only be explained by the consciousness on the part of Congress that it had no authority to assume any additional powers proposed by the Articles of Confederation until the delegation of these powers was sanctioned by the

separate States. This consciousness of lack of power in Congress is a confession of its impotency, as well as of the omnipotence of the States, as is evidenced in the abandonment, by the clear declaration of Congress, of the assertion of supreme sovereignty made for it by the school of Judge Story, von Holst, and others.

When Congress had adopted these Articles, it issued a letter to accompany the said Articles, dated November 17, 1777.¹In that letter Congress said: "To form a permanent union, accommodated to the opinion and wishes of the delegates of so many States, differing in habits, produce, commerce, and internal police, was found to be a work which nothing but time and reflection, conspiring with a disposition to conciliate, could mature and accomplish.

" ... Let it be remarked that, after the most careful enquiry, and the fullest information, this is proposed as the best which could be adapted to the circumstances of all; and as that alone which affords any tolerable prospect of general ratification.

"Permit us, then, earnestly to recommend these Articles to the immediate and dispassionate attention of the legislatures of the respective States. Let them be candidly reviewed under a sense of the difficulty "of combining in one general system the various sentiments and interests of a continent divided into so many sovereign and independent communities, under a conviction of the absolute necessity of uniting all our councils and all our strength to maintain and defend our common liberties....

"We have reason to regret the time which has elapsed in preparing this plan for consideration: with additional solicitude we look forward to that which must be necessarily spent before it can be ratified. Every motive loudly calls upon us to hasten its conclusion....

"In short, this salutary measure can no longer be deferred. It seems essential to our very existence as a free people, and without it we may soon be constrained to bid adieu to inde-

pendence, to liberty and safety; blessings which, from the justice of our cause, and the favor of our Almighty Creator visibly manifested in our protection, we have reason to expect, if in an humble dependence on his Divine Providence we strenuously exert the means which are placed in our power.

"To conclude, if the legislature of any State shall not be assembled, Congress recommend to the executive authority to convene it without delay; and to each respective legislature it is recommended to invest its delegates with competent powers ultimately in the name and behalf of the State to subscribe articles of confederation and perpetual union of the United States; and to attend Congress for that purpose on or before the � day of �.

On the 1st of March, 1781, the Journal of Congress states that "two of the delegates from the State of Maryland, in pursuance of the act of the legislature of that State," ... did, "in behalf of the said State of Maryland, sign and ratify the said articles, by which act the confederation of the United States of America was completed, each and every of the Thirteen United States, from New Hampshire to Georgia, both included, having adopted and confirmed, and by their delegates in Congress ratified the same, as follows: To all to whom these presents shall come, we, the undersigned delegates of the States affixed to our names, send greeting: Whereas, the delegates of the United States of America in Congress assembled, did, on the 15th day of November, in the year of our Lord 1777, and in the second year of the independence of America, agree to certain articles of confederation and perpetual union between the States of New Hampshire, Massachusetts Bay (all being named down to Georgia), in the following words to wit."

The caption of these Articles is in these words: "Articles of Confederation and Perpetual Union, between the States of New Hampshire, Massachusetts Bay (all named down to

Georgia)." Those Articles wore signed thus: "Josiah Bartlett, John Wentworth, Jr., August 8, 1778, on the part and behalf of the State of New Hampshire," and in the same manner by all the other delegates on the part and behalf of the respective States they represented. The Journal of Congress opens on the next day thus: "The United States in Congress assembled, March 2nd, 1781. The ratification of

the articles of confederation being yesterday completed by the accession of the State of Maryland, the United States met in Congress, when the following members appeared," etc.¹ Thus, by the record of Congress itself, it appears that the Articles of Confederation never went into effect until they were separately ratified by the authority of the legislature of each State.

First. They are described as Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay, etc. The parties between whom the Articles were made are States � not men. They constituted a confederation and union between States.

Second. Article 1 declares: "The style of this Confederacy shall he The United States of America." The baptismal name of this Confederacy is "The United States of America." Therefore, the United States of America designates a confederacy between States.

Third. Article 2 declares: "Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this Confederation expressly delegated to the United States in Congress assembled."

(a) The distinction between "sovereignty, freedom and independence," and the words "every power, jurisdiction and right," must be noted. This distinguishes sovereignty as the indivisible essence from powers, which are emanations from the sovereignty. "The sovereignty, freedom and in-

dependence" of each State is retained by each State, � i. e., retains (re and teneo � holds back) what it had already possessed, � holds it back as not intended to be granted, but clearly to be retained. Holds back from whom? Clearly from the United States in Congress assembled. Then how could Congress have had a paramount sovereignty when the States retained it from Congress, � i. e., held it back as the present possession of each State, and which Congress had not previously possessed and was not intended, therefore, to possess?¹

(b) Then, what "powers, jurisdiction and right" are respectively, under the Articles, held by the respective States and by Congress? The article declares in express terms that each State retains "every power, jurisdiction and right" which is not by this Confederation expressly delegated to the United States in Congress assembled. "Every power, jurisdiction and right" which, under the Articles, Congress possessed, was by express delegation granted to the Congress by the Articles of Confederation. The powers not so expressly delegated are expressly retained by each State. It is therefore clear that each State retained its sovereignty, freedom and independence intact and undivided, and every power, jurisdiction and right by original title, which was not expressly delegated to Congress, and those so expressly delegated to Congress were not inherent in Congress, but only belonged to Congress by derivation from the States.

This article reflects clear light upon the questions we have already discussed under the Continental Congressional Era, and condemns the theory that, during that Era, Congress was de facto and de jure sovereign, or had any power, jurisdiction and right which was not derived by delegation from the States respectively.

The clause, therefore, not only shows that, under the Confederation established by the Articles, each State retained, intact and indivisible, its sovereignty, freedom and independ-

ence, but every power, jurisdiction and right which the States did not delegate to Congress by the terms of the Articles; but shows further, that in all the Continental Congressional Era, prior to the adoption of the Articles, this relation between the States and Congress had, for a stronger reason, always existed. For if the Articles of Confederation were intended to increase the functional powers of Congress beyond what it had exercised during the Continental Congressional Era, then the status established by the Articles of Confederation must, a fortiori, have existed under the Continental Congressional Era.

Fourth. Article 3 declares: "The said States hereby severally enter into a firm league of friendship with each other for their common defense," etc.

Every word here conveys the idea of separate and independent action. The States severally entered into a firm league with each other. They do not consolidate themselves into one people, nor are they one people entering into these Articles of Confederation. They are the several States making with each other a league � which means a bond or obligation or covenant between parties by which each binds itself to the other to do or allow certain things. It is an alliance between independent States to which each is a party, self-bound to the others in respect to matters mentioned in the instrument constituting it. It excludes absolutely the idea that the parties to the league are the fractional parts of one nationality.

Fifth. In the fourth Article, intercourse and the intercommunication of the privileges and immunities of citizenship are secured, with the exception of paupers, vagabonds and fugitives from justice; also the extradition of fugitives from justice is secured, and also full faith and credit is given in each of these States to the records, etc., of every other State.

This Article is very instructive upon the relations between the people of the different States. It absolutely negatives the idea that the people of all the States were equal mem-

bers and citizens of one civil Body-politic, and affirms that the citizens of each State had their own peculiar privileges and immunities secured by their sovereign State, which by these Articles were, in a limited degree, secured to the citizens of every other State; so that no citizen of any State had any inherent privilege or immunity of citizenship in any other State, except as it was conferred by this league and agreement among the several States. The grant of these privileges and immunities disproves the assertion that they pre-existed without the grant, and establishes the absolute independence of each one of the States and their power to grant or withhold the privileges and immunities of citizenship to or from citizens of other States.

Sixth. Article 5 provides that each State shall annually appoint, in such manner as its legislature shall direct, delegates to Congress, with power reserved to each State to recall its delegates, etc. It also provides that each State shall maintain its own delegates "in any meeting of the States" (a phrase which indicates that Congress was a meeting of States). Each State in Congress had but one vote, and this despite the numerical power of the different States.

Seventh. Article 6 contains limitations self-imposed by the States upon themselves. Limitations agreed to because the exercise of the prohibited functions by a State would be inconsistent with the powers delegated expressly to Congress.

Eighth. Very important powers were delegated expressly to Congress, all of them looking to the general interest and common defense of the States of the Confederation. But while the powers were very large the limitations on them were very great. Congress could lay no taxes, nor raise money but by loans and the emission of bills of credit, and by requisition on the States for their quotas of the fund necessary for the common defense and general welfare. These quotas, which were to be paid by the States, were to be laid and levied by the legislatures of the several States, which in practice they very often refused to do. So that Congress, in the matter of money for carrying on a war for

common defense, was absolutely dependent upon the will of each State to comply with its requisition for the States' quotas. (See Article 8.) Furthermore, troops were to be raised, not by the power of Congress, but by the States themselves, and this was done upon an admission of Congress, that, if the States refused, Congress could not enforce it. Officers in command of such troops, and below the rank of colonel, were appointed exclusively under the authority of the States. The general officers only were appointed by the Congress of the United States. (See Article 7 and Article 9.)

Ninth. Many of the most important powers delegated to Congress could only be exercised when nine States assented to the same; and all other questions, except as to adjournment from day to day, by a vote of a majority of the United States in Congress assembled.

The regulation of commerce was left to the States, though Congress could make treaties of commerce. Congress was authorized to complete and equip a navy. Congress had the power of war and of treaty-making.

Tenth. The Articles could be amended by Congress when confirmed by the legislatures of every State.

§ 135. The letter of Congress transmitting these Articles to the States for ratification has already been referred to. In this letter Congress urges upon the States the adoption of the Articles, "as essential to our very existence as a free people, and without it we may soon be constrained to bid adieu to independence, to liberty and safety."

Looking at the terms of these Articles which increased the power of Congress in important respects beyond the powers exercised by it under the Continental Congressional Era, we may well ask whether this language of Congress is that of a paramount sovereign to its dependent vassals � of the de facto and de jure sovereignty demanding so eagerly from its subordinate provinces more power in order to greater efficiency; and if these Articles conferred larger powers than Congress had previously possessed, what becomes of the hypothesis of

its sovereignty so confidently asserted? How does this central sovereign, which, as Judge Story asserts, was the creator of these States, come to beg of these � its creatures � only enough power to save itself from extinction? These questions can only be resolved by one answer: That Congress was, and had ever been, the delegated agent of the several States; each of which had, since the moment of its self-assumed independence, been possessed of that which under these Articles of Confederation they expressly retained, to wit: sovereignty, freedom and independence, as well as every power, jurisdiction and right which it had not by its own will delegated to the Congress by the credentials furnished to its separate delegates. After the Confederation went into operation on the 1st of March, it for the first time began to legislate and enact ordinances under the powers vested in it. This it had never clone before, except in matters relating to its own organization.

The revolutionary struggle closed with the treaty of peace, ratified by Congress on the 14th of January, 1784. In this treaty there are certain provisions important now to be noticed. Congress made and ratified the treaty, and its first article contains this declaration: "His Britannic Majesty acknowledges the said United States, viz.: New Hampshire, Massachusetts Bay (naming all down to Georgia), to be free, sovereign and independent States; that he treats with them as such, and for himself, heirs and successors, relinquishes all claim to the government, property and territorial rights of the same, and every part thereof."

The treaty purported to be made, not between Congress and Great Britain, but between the United States of America and Great Britain, and the freedom, sovereignty and independence of the States as such was acknowledged, as also that the treaty was made "with them as such," and that his Britannic Majesty relinquished "all claims to the government, property and territorial rights of the same." The independence which the States had declared for themselves as free, sovereign and independent States was thus confirmed

§ 136. One other important act during the Confederation Era remains to be noted.

Virginia, by deed dated March, 1784, executed by her delegates in Congress under her authority, conveyed her northwestern domain, which was held by the double title of charter and conquest (now five States containing nearly 15,000,000 people), to the United States in Congress assembled, for the benefit of said States, and all her right, title and claim as well of soil as jurisdiction, on certain conditions, one of which was that the territory should be formed into States, "and that the States so formed shall be distinct republican States, and admitted members of the federal union; having the same rights of sovereignty, freedom and independence as the other States.... That all the lands

... so ceded ... shall be considered as a common fund for the use and benefit of such of the United States as have become or shall become members of the confederation or federal alliance of the said States, Virginia inclusive, according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever."¹

Congress accepted the deed. This deed made by Virginia and accepted by Congress operates an estoppel upon Congress to deny its provisions. It proves:

First. That Virginia, and not Congress, had exclusive right of soil and jurisdiction to the territory thus ceded.

i. e., they were not parts of one civil Body-politic, but were to be admitted into the federal union established by the Articles of Confederation.

sovereignty, freedom and independence retained by the original State in the second of the Articles of Confederation.

Fifth. The relation between the States was described as a confederation of federal alliance (foedus � compact).

Sixth. Each State as such was to have a separate claim on the fund arising from the sale of land so ceded.

Seventh. The Congress under the present Constitution has recognized this separate right of each State to a share of the proceeds of sales of public lands, by distributing them among the States.

§ 137. The facts thus presented are confirmed by the highest judicial authority.

In Gibbons v. Ogden,¹ Marshall, C. J., says, speaking of the relation of the States to each other prior to the present Constitution: "It has been said that they (the States) were sovereign, were completely independent, and were connected with each other by a league. This is true." In this language he spoke the opinion of the whole court, of whom Judge Story was one. If this was true under the Articles of Confederation, a fortiori was it true before their adoption in March, 1781.

In Wheeler v. Smith,² Mr. Justice M'Lean, speaking for the whole court, said: "When this country achieved its independence the prerogatives of the crown devolved upon the people of the States. And this power still remains with them, except so far as they have delegated a portion of it to the Federal government.... The State, as a sovereign, is the parens patri�."³

In the celebrated Dartmouth College Case⁴ this whole view is sustained. The college was chartered by the crown. The court held that New Hampshire succeeded to the royal prerogative, and was bound by royal compact expressed in the charter � a contract to which the State succeeded and the obligation of which the State could not impair by any act of its legislature. If Judge Story's view be correct that Con-

gress was the sovereign, de facto and de jure, why did not Congress succeed to the prerogative of the crown and to the obligation upon it through the charter of Dartmouth College? Without doubt it may then be regarded as conclusively settled by history that under the Articles of Confederation and previous to their adoption, the States as free, sovereign and independent States were united in a league, confederation or alliance; that the name of this confederacy was the United States of America; that it was a confederacy whose units were States; that the Articles were a compact and agreement between States; and that the United States of America were not one civil Body-politic whose units were men.

§ 138. It has been shown by the terms of the Articles of Confederation that each of the States retained its sovereignty, freedom and independence. It may be well before proceeding further to point out succinctly the action of each State in respect to its own constitution and internal polity.

Connecticut,¹ in 1776, made a "Declaration of the Rights and Privileges of the People of this State," in which, holding to its ancient form of civil government contained in its original charter, it declared that "The People of this State, being by the Providence of God free and independent, have the sole and exclusive Right of governing themselves as a free, sovereign and independent State;" that the Charter "shall be and remain the Civil Constitution of this State, under the sole authority of the people thereof.... And that this Republic is, and shall forever be and remain, a free, sovereign and independent State, by the Name of the State of Connecticut." This continued to be the Constitution of Connecticut until 1818.

stitution for the State of Delaware. By this Constitution a Great Seal of the State was adopted. Commissions and writs were to "run in the name of 'The Delaware State.'" Indictments to conclude, "Against the peace and dignity of the State." All persons appointed to office should make oath to "bear true allegiance to the Delaware State," etc.

Georgia,¹ in convention, adopted a Constitution in which the oath of every voter and every officer was required to be taken to "bear true allegiance to the State of Georgia."

Maryland,² in convention August 14, 1776, established a Constitution declaring: "That the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof." All officers were required to take oath to "bear true allegiance to the State of Maryland." All commissions and grants were to be in the name of "The State of Maryland;" and all indictments "Against the peace, government and dignity of the State."

Massachusetts,³ in convention March 2, 1780, framed a Constitution which was submitted to the people, and ratified by more than two-thirds of those who voted. It ordained "The Constitution of the Commonwealth of Massachusetts," which it designated as "an original, explicit and solemn compact with each other:" viz., the people of Massachusetts. It declared that the people inhabiting the territory "do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign and independent Body-politic or State, by the name of the Commonwealth of Massachusetts." Every person chosen to office was required to take an oath that he truly and sincerely acknowledged that "the Commonwealth of Massachusetts is, and of right ought to be, a free, sovereign, and independent State," and that he "will bear true allegiance to the said Commonwealth; that no power, jurisdiction or authority can be exercised within this Commonwealth,"except the authority or power which is or may be vested by their constituents in the Con-

gress of the United States." Writs and commissions were to be in the name of the Commonwealth of Massachusetts, with the Great Seal of the Commonwealth attached.

New Hampshire,¹ after having established a temporary government for the colony of New Hampshire, January 5, 1776, afterwards, in convention, framed a Constitution, which was submitted for ratification by the votes of the people, and went into effect June 2, 1784. It declared that the people inhabiting the territory "do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign and independent Body-politic, or State, by the name of the State of New Hampshire." Every person elected to office shall make oath that he sincerely acknowledges "that the State of New Hampshire is, and of right ought to be, a free, sovereign and independent State," and an oath of true allegiance to the same.

New Jersey,² in a convention of the people, adopted a Constitution July 3, 1776, in which New Jersey was spoken of as a "colony." The Constitution was adopted with a view of possible reconciliation with Great Britain, but if no such reconciliation occurred, then to remain firm and inviolable. September 20, 1777, this Constitution was amended by substituting the words "State" and "States" for "colony" and "colonies." It adopted a great seal, directed commissions to issue in the name of "the Colony of New Jersey," and all indictments to conclude, "Against the peace of the colony, the government and dignity of the same." This Constitution continued in force until 1844.

New York,³ on the 28th of April, 1777, in convention of the people of New York, declared that no authority over the people of this State shall be exercised "but such as shall be derived from a grant by them." All writs were to run in the name of "the People of the State of New York." The instrument further provided for the naturalization of

North Carolina,¹ in December, 1776, adopted a Constitution, making all commissions and writs to run in the name, and indictments to conclude against "the peace and dignity of the State." And that "the people of this State are to have the sole and exclusive right to regulate the internal government and police thereof."

Pennsylvania,² in convention, September 28, 1776, established a "Constitution of this Commonwealth." It established a State seal; all commissions to be by authority of the "freemen of the Commonwealth of Pennsylvania," and all indictments to conclude "Against the peace and dignity of the same." Official oaths to be true and faithful to the Commonwealth of Pennsylvania.

Rhode Island:³ In 1643 a patent for Providence Plantations was issued. In 1663 Charles II. granted a charter to Rhode Island and Providence Plantations, under which the people of the State of Rhode Island lived until the year 1842, when, by a convention duly elected by the people, a Constitution was adopted and ratified by the people in November, 1842.

South Carolina,⁴ in November, 1778, established a Constitution for "the State of South Carolina," and required an oath of its officers of acknowledgment that the State of South Carolina is "a free, sovereign and independent State." This was adopted by the General Assembly of South Carolina, and was held by the courts to be repealable at pleasure. A Constitution was adopted by South Carolina in 1790.

Virginia,⁵ on the 29th of June, 1776, adopted a Constitution, after having adopted a Declaration of Rights on the 12th of June, 1770. The commissions, grants and writs were to run in the name of the "Commonwealth of Virginia," and indictments to conclude "Against the peace and dignity of

the Commonwealth." "All escheats heretofore going to the king shall come to the Commonwealth." Officers were re-

This review of the separate action of the different States shows that each exercised its sovereignty, freedom and independence in accordance with the terms of the second article of the Confederation, until the adoption of the Constitution of 1789.

Second. What are the relations of the States to the Government thereby established, and inter se? Is the Union organic or functional? Is it staaten-bund or bundes-staat? Is a new civil Body-politic created by it? If so, are its units States or men?

§ 140. In answer to the first question it will be shown that the States, as free, sovereign and independent civil Bodies-politic, ordained the Constitution; that it is a federal compact between the States as bodies-politic, by which the government has been established, which is a Democratic-Republican and Federal government; supreme within the limits of the delegated powers over all the constitutions and laws of the several States, and binding and operating upon the citizens of all the States, and by its terms certain rights and privileges of the citizens of each are intercommunicated to those of every other. In considering the causes which led the States to change all the Articles of Confederation into the present Constitution, we may state that the Confederation had two leading vices, in the opinion of those who were earnest advocates for the change.

Mr. Hamilton says:¹ "The great and radical vice, in the construction of the existing confederation, is in the principle of legislation for States or governments, in their corporate or collective capacities, and as contradistinguished from the indi-

viduals of whom they consist.... The United States have an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though, in theory, their resolutions concerning those objects are laws, constitutionally binding on the members of the union; yet in practice, they are mere recommendations, which the States observe or disregard at their option."

The second vice of the Confederation is stated by the same writer in the following language:¹ "It has not a little contributed to the infirmities of the existing federal system that it never had a ratification by the people. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers; and has, in some instances, given birth to the vicious doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure original fountain of all legitimate authority."

The Articles of Confederation were ratified by the legislature of each State. This was the delegated authority. The people of the State � the sovereign de facto � never ratified it. The Constitution of each State, as we have seen, rests upon the will of the people of the State as the sovereign civil Body-

politic. The source of authority for the Constitution of a State is, therefore, higher than that of the Articles of Confederation, and it might plausibly be held that the higher authority of the Body-politic might revoke and supersede the Articles of Confederation adopted by the delegated authority. This possible exercise of the repealing power is what Mr. Hamilton refers to, and he maintains with conclusive force that, if the bond of the Confederation was based on the obligations of the several sovereign bodies-politic, instead of their several legislatures, the compact between the sovereign States would be superior in force even to the Constitution of the State adopted by the Body-politic itself. He therefore maintains that the new Constitution ought to have the sanction of the delegating authority and not merely of the delegated authority of the legislatures.

So Mr. Madison, in speaking of the proposed Constitution, says:¹ The convention "must have borne in mind that as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out all antecedent errors and irregularities."

We now proceed to consider the question proposed. By whom was the Constitution of the United States ordained? By the legislatures of the States? By the convention of delegates from the States? By the people of the United States as one Body-politic? Or by the people of the several States as distinct and independent bodies-politic? This is a question of historic fact � not of theory.

§ 142. A sketch of the leading events which led to the adoption of the Constitution in 1789 will now be attempted.

When Virginia, in May, 1776, instructed her delegates to propose to the Congress, not only the Declaration of Independence, but that a confederation be formed to bind the colonies more closely together, Congress set to work to frame the Articles of Confederation as the best form of con-

federation that could then be devised so as to meet with acceptance by the States. During the period which elapsed before the Articles of Confederation were finally adopted in March, 1781, the thoughtful minds of the era, under the pressure of a desperate struggle for independence, and the inadequacy of so loose a confederation to achieve independence, began very strongly to conceive the idea that, after independence was achieved, its maintenance and perpetuation could only be accomplished by a confederated union of the States, with larger powers in the Federal government, and based upon the sovereign will of the people. It is curious to see how, even before the ratification of the first plan of the Federal Constitution, the minds of men had grown beyond their first conception, and saw the need of a better adjusted scheme of government than that which had been proposed and was not yet adopted.

As early as August, 1780, six months before the ratification of the Articles of Confederation, a convention of the New England States, at Boston, declared for a more solid and permanent union, with one supreme head and "a Congress competent for the government of all those common and national affairs which do not nor can come within the jurisdiction of the particular States." The convention issued an invitation to the New England States, New York, and "others that shall think proper to join them," to meet at Hartford.¹ This convention of the four New England States and New York assembled at Hartford, November 11, 1780. It was proposed by them to provide by taxes and duties an inalienable revenue to discharge the interest on the public debt. These proposals were sent to every State in the Union, to General Washington and to Congress.

Congress proposed to the States, February 3, 1781, to vest Congress with power to lay a five per cent. duty on certain imports, the money arising from said duties to be applied to the payment of the public debt.² In 1782, New York,

reciting the public embarrassments from the want of a sufficient power in Congress to provide for itself a revenue, invited Congress "to recommend and each State to adopt the measure of assembling a general convention of the States specially authorized to revise and amend the confederation, reserving a right to the respective legislatures to ratify their determinations."¹

On the 18th of April, 1783, after peace was declared, Congress proposed that the States should invest it with power to levy certain duties upon imports for the sole purpose of paying the principal and interest of the public debt, and to provide for a further revenue to be furnished by the States on a fixed quota for twenty-five years; no State to be bound by its consent to this proposal until all accede thereto, after which "they shall be considered as forming a mutual compact among all the States, and shall be irrevocable by any one or more of them, without the concurrence of the whole, or of a majority of the United States in Congress assembled." This proposal was never acceded to.

Virginia, December 4, 1783, unanimously consented to empower Congress to adopt the most effectual mode of counteracting the restraints on American navigation so long as they should be continued.² This declaration was sent to Congress and the States. This action by Virginia was no doubt due to the British order in council, July 2, 1783, which restrained all commerce between American ports and the British West Indies to British bottoms.

Congress thereupon, April 30, 1784, proposed to the States to vest in Congress for the term of fifteen years the power to prohibit any goods, wares or merchandise from being imported into, or exported from, any State in any vessel belonging to or navigated by the subjects of any power with whom these States shall not have formed treaties of com-

merce. Such act of Congress required the assent of nine States to its passage.¹

These tentative propositions indicated in the strongest way the public sense of the first vice of the Articles of Confederation already referred to, which was that Congress legislated for States, and dependently through States upon the citizens thereof. It could will, but could not do. It could ask and recommend, but could not enforce. Its will to be effectual required the concurrence of all the States as separate and distinct Bodies-politic. It could raise no revenue, but could only make requisitions; could lay no tax, but only ask the States to do so. This absolute dependence of Congress, charged with the conduct of a great war for independence, upon the consent � sometimes it might be capricious consent � of the different States, created a condition of pitiable imbecility of power which is a mockery of the claim of its then sovereignty, de facto and de jure.

§ 143. But another question of great consequence had arisen. The States under the confederation had the power of regulating commerce with foreign nations. The adverse regulations of foreign powers in respect to trade with the American States could be countervailed only by the separate and independent action of each State, and the several States, instead of combining in a uniform policy of retaliation against the hostile measures of foreign nations, were competing with each other as rivals to secure separate advantages to themselves by special regulations of commerce adopted by each. The effect of this was seen by the statesmen of the era to be on the application of the maxim "divide et impera," to give to foreign nations the complete control of all our commercial interests by dividing the States and preventing their union upon some uniform system of countervailing the hostile policy of these foreign nations.

It was against this policy that the proposition of Virginia, just referred to, was made, and showed the proper and states-

manlike views of our statesmen upon the important question of foreign commerce in the United States.

Mr. Jefferson, whose report in 1783 in Congress on foreign affairs looked rather to freedom of navigation and commerce from all restraints, and to many reforms in respect to commerce in times of war (many of which he attributes to the suggestion of Dr. Franklin), puts this subject in a very terse form in a letter of February 8, 1786, to Mr. Madison, from which we quote as follows: "The politics of Europe render it indispensably necessary that with respect to everything external we be one nation only and firmly hooked together: the internal government is what each State should keep to itself." And in a letter December 16, 1786, he says: "To make us one nation as to foreign concerns and keep us distinct in domestic ones gives the outline of the proper division of power between the general and particular governments." These views were consonant with the instructions drafted by him for our foreign ambassadors in 1784, in which he, as to treaties with foreign nations, described the United States as one nation. Mr. Bancroft¹ has given the letters of Hamilton, Adams, Madison, and others of that period, which all show the march of public opinion towards a remedy for the felt evils of a lack of Federal power to raise its own revenue, and towards countervailing by Federal legislation the political war of foreign nations on our commerce and on our navigation.

Perhaps the most influential, as it was the most powerful, statement of the need of a new Constitution, is found in the letter of George Washington, dated June, 1783, after peace was declared, but before his resignation of his commission to the people for whose independence he had drawn his sword. He published it as his legacy to his country.

The confessed inadequacy of the Articles of Confederation, and the broad and prophetic statesmanship of the leading minds of that era, ripened the public judgment for the

reception of any proposal which might be made by any Common wealth in the direction of a better confederate union. An opportunity was furnished by a local necessity for the establishment of some commercial regulations between the States of Maryland and Virginia in respect of the commerce on the Potomac River and on Chesapeake Bay common to both States. A meeting of commissioners from these States was arranged for the 28th of March, 1785, at Mt. Vernon, under the auspicious roof of Washington. The commissioners prepared the terms of a compact and made a report, which was laid before their respective legislatures. By way of enlarging the policy adopted between these two States, Madison moved in the Virginia legislature to give to Congress power over the trade of the nation.¹ The proposal met with opposition and was laid over for a time. Washington, being invited to offer suggestions, said: "If the States individually attempt to regulate commerce, an abortion, or a many-headed monster, would be the issue. If we consider ourselves, or wish to be considered by others, as a united people, why not adopt the measures which are characteristic of it and support the honor and dignity of one? If we are afraid to trust one another under qualified powers there is an end of the union."²

Maryland, in announcing to Virginia her adhesion to the compact agreed upon by the joint commission, proposed that commissioners from all the States should meet in convention, to regulate American commerce. Madison, taking advantage of this suggestion of Maryland's, proposed a resolution, through Mr. Tyler, for the appointment of commissioners from Virginia and all the other States to digest and report the requisite augmentation of the powers of Congress over trade, their report to be of no force until it should be unanimously ratified by the several States.³

¹1 Rives' Madison, pp. 201, 202. ² Bancroft's History of the Const. U. S., ch. 7, p. 251.

a large majority. Madison was one of the commissioners appointed. Other States acceded to this proposal, and a convention met at Annapolis September 11, 1786, of five States only: New York, New Jersey, Pennsylvania, Delaware and Virginia. New Jersey, in her response to the overture of Virginia for this convention, made an important addition to the purposes of the Annapolis convention, which seems to have been suggested by another movement.

Mr. Charles Pinckney, of South Carolina, as one of the committee sent by Congress to the legislature of New Jersey, on the 13th of March, 1786, urged upon that body the calling of a general convention of the States for the purpose of increasing the powers of the Federal government and rendering it more adequate to the needs for which it was instituted.¹ New Jersey thereupon empowered her commissioners to the Annapolis convention "to consider how far a uniform system in their commercial regulations and other important matters might be necessary to the common interest and permanent harmony of the several States; and to report such an act on the subject as, when ratified by them, would enable the United States in Congress assembled effectually to provide for the exigencies of the union."²

This important advance upon the Virginia proposition was valuable as a suggestion, but as only five States attended at Annapolis, the convention, September 14, 1786, adjourned, after issuing an address drawn by Hamilton and signed by John Dickinson, its venerable president. In that address, the convention, adverting to the suggestions of New Jersey, proposed to their constituent States to obtain the concurrence of the other States to meet in convention at Philadelphia on the second Monday in May, 1787, to take into consideration and advise further measures "to render the Constitution of the Federal government adequate to the exigencies of the union."

Congress failed to act promptly upon this proposition and the movement halted; but early in November, 1786, Virginia, on Madison's motion, unanimously passed an act for the appointment of commissioners to the convention at Philadelphia, who "are hereby authorized as deputies from this Commonwealth to meet such deputies as may be appointed and authorized by other States to assemble in convention at Philadelphia, as above recommended, and to join with them in advising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union; and in reporting such an act for that purpose to the United States in Congress, as, when agreed to by them and duly confirmed by the several States, will effectually provide for the same."¹

Other States followed in accord with this action. Congress on the 21st of February, 1787, basing its action on the power of amendment of the Articles of Confederation by the assent of Congress and of the legislatures of the several States, resolved that it was expedient, in its opinion, "that on the second Monday in May next, a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation and reporting 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 Constitution adequate to the exigencies of government and the preservation of the Union."²

§ 144. It is now in order to consider the question previously propounded: Who ordained the Constitution of the United States?

We remarked that all the States appointed their delegates to this convention by their legislatures except Rhode Island,

which never appeared in the convention. New York never gave a vote after July 10th. There were never more than eleven States present at any session. The avowed object of the convention was, as stated in the resolutions before cited and especially that of Congress, for the sole and express purpose of revising the Articles of Confederation and reporting such provisions as shall make the Federal Constitution adequate, etc. We remarked further that these Articles are called "The Federal Constitution," that is, the constitutional compact between the States.

Each State, in its credentials to its delegates, required all action by the convention to be confirmed by itself to be binding. Virginia said: "Confirmed by the several States, �

not by their legislatures." The proceedings of this convention may be found in the Journal of the Convention published by Congress, and in the reports of its proceedings and debates by James Madison. Mr. Madison's account states that a small number of delegates assembled on the day fixed for the meeting and that "seven States were not convened until Friday, May 25th." The official journal, calling it "The Federal Convention," opens thus: "In virtue of appointments from their respective States, sundry delegates to the federal Convention appeared; but a majority of the States not being represented," there was an adjournment.¹

George Washington was made President. The rules adopted by the convention declared that the house to do business shall consist of the deputies of not less than seven States, each State having one vote. The Journal states the Constitution passed in the affirmative, all the States concurring. The last clause of the Constitution declares: "Done in convention by the unanimous consent of the States present." All States answered "aye."²

The nineteenth resolution in Mr. Randolph's plan read in these words: "That the amendments which shall be offered

to the confederation by the convention ought at a proper time, or times, after the approbation of Congress, to be submitted to an assembly or assemblies recommended by the several legislatures to be expressly chosen by the people to consider and decide thereon."¹

In the discussion of this resolution Mr. Ellsworth moved to refer it to the legislatures of the States for ratification. Colonel Mason said: "The legislatures have no power to ratify it. They are the mere creatures of the State Constitution and cannot be greater than their creators." Mr. Madison held that, as the proposed Constitution made essential inroads on the State Constitutions, it was not competent for the legislature to ratify the Federal Constitution, which changed the State Constitution.

Mr. Ellsworth's motion was defeated: ayes, 3; noes, 7. Mr. Gouverneur Morris moved that a reference of the plan be made to one general convention chosen and authorized by the people to consider, amend and establish the same. This was not even seconded. To submit it to assemblies chosen by the people, as stated in the nineteenth resolution: ayes, 9 States; noes, 1 State.

Mr. Hamilton, towards the close of the convention, proposed that the plan be transmitted to Congress, and if agreed to by them, then to be communicated to the legislatures of the several States to the end of its final ratification by the convention of deputies in each State to be chosen by the people thereof, etc. One State voted for and ten against it; seemingly because it made the ratification of the Constitution to depend upon its approval or rejection by Congress.²

It was then finally agreed that "this proposition shall be laid before the United States in Congress assembled, and it is the opinion of this convention that it should be afterwards submitted to a convention, or delegates chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification, and that each

convention assenting to and ratifying the same should give notice thereof to the United States in Congress assembled." Accordingly Congress, on the 28th of September, 1787, having received the report of the convention, resolved unanimously to transmit the said report, with the resolutions and letter accompanying the same, to the several legislatures in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolutions of the convention made and provided in that case.

That the Federal Convention ordained the Constitution of the United States seems to be the idea of a late writer, Mr. Burgess.¹ He seems to hold that this convention itself constituted the States one people. That it was the representation of the sovereign State, of which the several States, or Commonwealths as he calls them, were fractional parts.

This theory is novel, but not sound. The historic facts already set out show that the delegates were elected by the State legislatures, and with power to revise the Articles of Confederation and report back such measures as they adopted for confirmation. But how could they, � creatures of the sovereign States, as they were by the second of the Articles of Confederation, � adopt any plan by which the thirteen sovereigns were to be merged into one sovereignty? Even if the convention had attempted it, the act would have been futile.

We have, however, shown before, that when this convention proposed to refer it back to the legislatures for ratification, it was voted down for the very reason already stated, � that the legislatures had no power to ratify the Constitution framed by the convention; and as we have shown, it was a vice of the old Articles of Confederation that they were ratified by the legislatures, and, as Mr. Hamilton states, it was the purpose of the convention to cure that vice by making the Constitution rest for its validity on the ratification of the people of the several States.

Again, the resolution by which the Constitution was referred for ratification to a convention elected by the people in each State, without whose ratification it would not be binding on such State, is conclusive to show that the convention claimed no sovereign power, but actually disclaimed it.

The convention adjourned on the 17th of September, 1787. By the terms of the Constitution itself, "the ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same."¹ Thus, the convention which proposed this Constitution did not establish it, but made its establishment dependent upon the ratification of nine States essential to its authority in any one of them, and excluded any four who refused to ratify it from any obligation whatever to the Constitution; so that until nine States ratified it, it was not established at all as to any State, and when nine States ratified it, it was only established between those so ratifying the same. That the Constitution never went into effect until the 4th of March, 1789, and then only as to the States which had ratified it, is conclusively established, if authority were needed, by the decision of the supreme court in Owings v. Speed.²

This claim for the supreme and sovereign authority of the Federal Convention of 1787 is the more remakable because it was a convention in which the State of Rhode Island was not represented, and in which New York was not represented when the Constitution passed by a vote of the convention. In confirmation of the views here expressed, it may be well to state that in the thirteenth of the Articles of Confederation it is provided that no alteration of these Articles be made, unless such alteration be agreed to by the Congress of the United States and be afterwards confirmed by the legislature of every State. It is obvious that the convention set at naught this provision of the Articles of Con-

federation when it provided that the changes in the Articles of Confederation by the new Constitution did not require the consent of Congress and did not require to be confirmed by the legislatures of every State. The reason for this is to be found in the fact already so much insisted upon, that this new Constitution was an amendment of the Articles of Confederation by the sovereign authority of the States, and not by their legislatures, which were only delegated authorities. When the sovereignty declared its purpose, that superseded the provisions of the Articles of Confederation, which said that no alteration should be made except by the consent of Congress and of the legislatures of the States. That provision could only apply as a restriction on delegated aurhority, but could not be a restriction placed by the delegated authority upon its sovereign delegator.

This view is stated with great strength by Mr. Madison.¹His discussion not only negatives the theory of Mr. Burgess, but states that the Constitution adopted by that convention had its authority in "the transcendent and precious right of the people to 'abolish or alter their governments as to them shall seem most likely to effect their safety and happiness;' ... and that, as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out all antecedent errors and irregularities."

This shows clearly that the action of the Federal Convention was only the proposal of a plan to be ratified or rejected by the supreme authority of the people of the States. It was tentative, not conclusive. It proposed, but did not establish. It formulated what the States were to sanction or reject.

§ 145. After the action of the convention was made known to the States, as already stated, and while the consideration of the Constitution so proposed was before the people of the different States, there arose great anxiety

Three gentlemen of great ability, John Jay, afterwards Chief Justice of the United States, Alexander Hamilton, a member of the convention and afterwards Secretary of the Treasury, and James Madison, a member of the convention and afterwards President of the United States, published in the City of New York a series of papers, which were afterwards collected in a volume called "The Federalist," in which the action of the convention which proposed the Constitution, and the character of the instrument itself, were discussed with great power by these eminent men. These papers were written to induce the people of New York, as well as of other States, to ratify the Constitution, and in doing so explanations were made of difficulties that were suggested by its opponents, and a contemporaneous exposition was made, not only of the terms of the instrument, but of its general character, nature, objects and the mode by which it was to be finally ratified and established. This series of papers has always been regarded as of great weight upon these historic questions, because they were intended to persuade the people of the States to the ratification of the act, and thus give an implied sanction by them to the views urged upon the people by these great writers for the final sanction of the instrument itself.

We have already cited the language of Mr. Hamilton^lin which he held and urged the importance of "laying the foundation of our national government deeper than the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of the consent of the people." What he meant by "the consent of the people" will be gathered from the language of Mr. Madison,² which is very clear and pertinent to this inquiry. In considering the foundation on which the government is to be established, he says:

founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification, of the several States, derived from the supreme authority in each State � the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national, but a federal act.

"That it will be a federal and not a national act, as these terms are understood by the objectors, the act of the people as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the union, nor from that of a majority of the States. It must result from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal and not a national Constitution."

With this view Mr. Hamilton concurred in the last number of this series,¹ in which he says: "The compacts which

are to embrace thirteen distinct States in a common bond of amity and union must as necessarily be a compromise of as many dissimilar interests and inclinations." In advising that the Constitution should be ratified without attempting any previous amendment to it, and referring to the fact that the establishment of the Constitution depended on the ratification of only nine States, and that any subsequent amendment to the Constitution be ratified by three-fourths of the

"It appears to me susceptible of complete demonstration that it will be far more easy to obtain subsequent than previous amendments to the Constitution. The moment an alteration is made in the present plan, it becomes, for the purpose of adoption, a new one, and must undergo a new decision of each State. To its (i. e., the new alteration) complete establishment throughout the union, it will therefore require the concurrence of thirteen States. If, on the

contrary, the Constitution should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States. In this view alone, the chances are as thirteen to nine¹ in favor of subsequent amendments, rather than of the original adoption of an entire system.

"This is not all. Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest....

"The intrinsic difficulty of governing thirteen States, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion, constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents."

These authoritative statements, emanating from the master minds of Madison and Hamilton, put at rest the theory that the Federal Convention of 1787 was the representative of

The delegates to that convention were appointed by the legislatures of the several States. They voted in convention by States. They declared that the Constitution was done in convention by the unanimous consent of the States present. The action of the convention gave no authoritative sanction to the Constitution. The convention disclaimed all power to do so by directing it to be submitted by a law of the legislature of each State to a convention of the people of that State for its separate and distinct ratification. "One people" never elected delegates to that convention. "One people" never acted in that convention. "One people" in that convention never ratified the Constitution, and the convention itself proposed to rest its establishment only upon the separate ratification of each State, and in terms declared that, without such separate ratification by each State, it could not be established in that State.

Pursuant to the action of Congress in sending a copy of the Constitution "to the several legislatures in order to be submitted to a convention of delegates chosen in each State by

the people thereof," the legislature of each State passed a separate act for the election of deputies to a convention to take into consideration the proposed Constitution. Such a convention was so elected in each State. The ratifications of the Constitution by the several States may be found in the Journal of the Federal Convention.¹ These ratifications warrant, beyond controversy, the conclusion already reached, that the establishment of the Constitution was by the people of the several distinct States. At the risk of prolixity the substance of these ratifications will be given.

§ 146. Delaware: "We, the deputies of the people of the Delaware State, in convention met, having taken in our serious consideration the Federal Constitution proposed and agreed upon by the deputies of the United States in a general convention, ... have approved of, assented to, rati-

fled and confirmed, and by these presents do, in virtue of the power and authority to us given for the purpose, for, and in behalf of ourselves and our constituents, fully, freely and entirely approve of, assent to, ratify and confirm the said Constitution."

Pennsylvania: "In the name of the people of Pennsylvania. Be it known unto all men, that we the delegates of the people of the Commonwealth of Pennsylvania, in general convention assembled, have assented to, and ratified, and by these presents do, in the name and by the authority of the same people, and for ourselves, assent to and ratify the foregoing Constitution for the United States of America."

New Jersey: "In convention of the State of New Jersey." After reciting that a convention of delegates from the following States, to wit: New Hampshire, naming all but Rhode Island, had met at Philadelphia to form a Constitution, etc., and had reported the same to Congress, and that Congress had sent the same to the legislature of the State of New Jersey, and that the legislature had passed resolutions for the meeting of a convention of representatives as delegates to a State convention to consider the said Constitution: "Now be it known, that we the delegates of the State of New Jersey, chosen by the people thereof for the purposes aforesaid, having maturely deliberated on, and considered the aforesaid proposed Constitution, do hereby, for and on the behalf of the people of the said State of New Jersey, agree to, ratify and confirm the same and every part thereof."

Connecticut: "In the name of the people of the State of Connecticut. We, the delegates of the people of said State, in general convention assembled, pursuant to an act of the legislature in October last, have assented to and ratified, and by these presents do assent to, ratify and adopt the Constitution reported by the convention of delegates in Philadelphia," etc.

Commonwealth of Massachusetts: "In Convention of the Delegates of the People of the Commonwealth of Massachusetts, February 6, 1788. The convention having impar-

tially discussed and fully considered the Constitution for the United States of America, reported to Congress by the convention of delegates from the United States of America and submitted, ... and acknowledging with grateful hearts the goodness of the Supreme Ruler of the Universe in affording the people of the United States, in the course of His Providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn compact with each other by assenting to and ratifying a new Constitution in order to form a more perfect union, ... Do, in the name and in behalf of the people of the Commonwealth of Massachusetts, assent to and ratify the said Constitution for the United States of America." And after reciting the opinion of the convention that certain amendments would remove the fears, etc., "of many of the good people of this Commonwealth, and more effectually guard against an undue administration of the Federal government," the convention recommended the following alteration:

"That it be explicitly declared that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised."

Georgia: "In convention," reciting that "the form of a Constitution for the government of the United States of America" had been a.greed upon by the deputies, etc., and that the same had been transmitted to the legislatures, etc., and that the legislature of the State of Georgia had resolved: "That a convention be elected on the day of the next general election, ... to consider the said report, letter and resolutions, and to adopt or reject any part or the whole thereof. Now know ye, that we, the delegates of the people of the State of Georgia in convention met, ... have assented to, ratified and adopted, and by these presents do, in virtue of the powers and authorities to us given by the people of the said State for that purpose, for and in behalf of ourselves and constituents, fully and entirely assent to, ratify and adopt the said Constitution."

Maryland: "In convention of the delegates of the people of the State of Maryland. April 28, 1788. We, the delegates of the people of the State of Maryland, having fully considered the Constitution of the United States of America, reported to Congress by the convention of deputies from the United States of America, held in Philadelphia, on the 17th day of September, in the year 1787, of which the annexed is a copy, ... do, for ourselves, and in the name and on the behalf of the people of this State, assent to and ratify the said Constitution."

State of South Carolina: "In convention of the people of the State of South Carolina by their representatives.... The convention having maturely considered the Constitution, or form of government, reported to Congress by the convention of delegates from the United States of America, and submitted to them by a resolution of the legislature of this State, ... Do, in the name and behalf of the people of this State, hereby assent to, and ratify the said Constitution." The convention also declared "that no section or paragraph of the said Constitution warrants a construction that the States do not retain every power not expressly relinquished by them, and vested in the general government of the union."

State of New Hampshire: "In Convention of the Delegates of the People of the State of New Hampshire. June 21st, 1788. The convention having impartially discussed, and fully considered the Constitution for the United States of America, reported to Congress by the convention of delegates from the United States of America, ... and acknowledging with grateful hearts the goodness of the Supreme Ruler of the Universe in affording the people of the United States, in the course of His Providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn compact with each other, by assenting to and ratifying a new Constitution, in order to form a more perfect union, ... Do, in the name and behalf of the people of the State of New Hamp-

shire, assent to and ratify the said Constitution for the United States of America." Then reciting as the opinion of the convention, "that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this State,

... The convention do therefore recommend that the following alterations and provisions be introduced into the said Constitution:

"I. That it be explicitly declared that all powers not expressly and particularly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised."

"Virginia, to wit: We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the general assembly, and now met in convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us to decide thereon � Do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the

same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will; that, therefore, no right of any denomination can be canceled, abridged, restrained or modified by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press cannot be canceled, abridged, restrained or modified by any authority of the United States. With these impressions, with a solemn appeal to the Searcher of Hearts for the purity of our intentions, and under the conviction that whatsoever imperfections may exist in the Constitution, ought rather to be examined in the mode prescribed therein,

than to bring the Union into danger by a delay, with a hope of obtaining amendments previous to the ratifications � We, the said delegates, in the name and behalf of the people of Virginia, do, by these presents, assent to and ratify the Constitution recommended on the 17th day of September, 1787, by the Federal Convention for the government of the United States, hereby announce to all those whom it may concern, that the said Constitution is binding upon the said people, according to an authentic copy hereto annexed, in the words following."

The convention then recommended to the consideration of Congress certain amendments, with a declaration or bill of rights, and then proposed, among others, the following amendment to the body of the Constitution:

"That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States, or to the departments of the Federal government."

State of New York: "We, the delegates of the people of the State of New York, duly elected and met in convention, having maturely considered the Constitution for the United States of America, agreed to on the 17th day of September, in the year 1787, by the convention assembled at Philadelphia," made a number of declarations of rights, among which is the following: "That the powers of government may be re-assumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction and right which is not, by the said Constitution, clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several States, or to their respective State governments to whom they may have granted the same;" and after a statement of other amendments, the convention then declared: "Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall

have been proposed to the said Constitution will receive an early and mature consideration, we, the said delegates, in the name and behalf of the people of the State of New York, do, by these presents, assent to and ratify the said Constitution.''

And the convention also, "in the name and behalf of the people of the State of New York, enjoin it upon their representatives in Congress, to exert all their influence and use all reasonable means to obtain a ratification" of certain amendments therein set forth.

North Carolina and Rhode Island did not ratify the Constitution before it went into effect, but North Carolina did ratify it thereafter in the following form: "State of North Carolina; in Convention," reciting that the general convention at Philadelphia did recommend to the citizens of the United States a Constitution or form of government, in the following words, viz. (there reciting the whole); the convention then resolved: "That this convention, in behalf of the freemen, citizens and inhabitants of the State of North Carolina, do adopt and ratify the said Constitution and form of government." This ratification was on the 21st day of November, 1789.

Rhode Island, which had not appeared or taken any part in the convention at Philadelphia of 1787, on the 16th of June, 1790, ratified the Constitution in the following form: "Rhode Island. [The Constitution of the United States of America precedes the following ratification.] Ratification of the Constitution by the Convention of the State of Rhode Island and Providence Plantations. We, the delegates of the people of the State of Rhode Island and Providence Plantations, duly elected and met in convention, having maturely considered the Constitution for the United States of America, agreed to" ... (a copy whereof precedes these presents); "and having also seriously and deliberately considered the present situation in this State, do declare and make known," ... inter alia, "III. That the powers of government may be re-assumed by the people, when-

soever it shall become necessary to their happiness. That the rights of the States respectively to nominate and appoint all State officers, and every other power, jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or to the departments of government thereof, remain to the people of the several States, or to their respective State governments, to whom they may have granted the same," etc. And after a number of other declarations of rights, the ratification proceeds: "Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments hereafter mentioned will receive an early and mature consideration, and conformably to the fifth article of said Constitution, speedily become a part thereof � We, the said delegates, in the name and in behalf of the people of the State of Rhode Island and Providence Plantations, do by these presents assent to and ratify the said Constitution."

§ 147. The convention enjoined upon its representatives to obtain a ratification of certain amendments, among which the following amendment may be stated:

"I. The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this Constitution expressly delegated to the United States."

It may be well at this point to state that, agreeably to the declarations and urgent recommendations of the several States, the Congress of the United States proposed certain articles, with this statement: "The conventions of a number of the States, having at the time of their adopting the Constitution expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added," ... resolved that certain amendments should be proposed to the Constitution, twelve in number. The first two were never ratified; the last ten were ratified by the States, and are now parts of the

Constitution and known as the "first ten amendments" thereto. The last two of these amendments are here inserted, as connected with the points now under consideration :

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

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

These facts as to the purpose of the convention, that the sanction and final ratification of the Constitution should be

made by the people of the several States in conventions elected for that purpose, and the terms of the ratifications themselves, with the several declarations made by many conventions contemporaneous with their ratification, together with the action of Congress proposing the ninth and tenth amendments just quoted, in answer to these contemporaneous declarations of the conventions, responded to by three-fourths of the States in the ratification of these two amendments, seem to leave no doubt, as a matter of historic fact, that the Constitution derived its final and obligatory sanction as to the people of each State from the separate ratification of its own convention; and that this separate ratification was equivalent to a delegation of powers to the government of the United States by the several States, and a distinct reservation of all powers not so delegated by the Constitution, if not prohibited thereby to the States, to the State governments respectively, or to the people of the State as the sovereign and delegating authority thereof.

The terms of the declarations of the several States give this interpretation to the phrase used in the tenth amendment, "to the States respectively or to the people;" that is, to the State governments as already delegated to them, or to the people of the States as the source of sovereign powers delegated to neither.

§ 148. These conclusions are expressly confirmed by the language of the Constitution (Article VII): "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." The language of this article is clearly affirmative, that any State convention ratifying would establish the Constitution as to it, if nine such conventions combined in its ratification; and negatively, that if less than nine ratify, it was binding on no State, and a fortiori was not binding on any State whose convention refused to ratify it. This is a demonstration of the fact that the people of each State could only be bound by its own separate ratification, and that all the other States by their combined ratification could not subject a State refusing to ratify to the authority of the Constitution. But if there was any doubt about this conclusion the doubt would be removed by the crucial test to which this theory was subjected by the refusal of North Carolina and Rhode Island to ratify the Constitution.

As to whom was the Constitution established on the 4th of March, 1789? The answer is: As to the eleven States which had ratified it, and that as to the two States who had refused, it not only was not established, but had no authority within them or over their people. This is demonstrated by the action of Congress in reference to these two States between the 4th of March, 1789, and the dates at which each of these States subsequently ratified the Constitution.

By an act approved July 31, 1789, it was provided: ''Whereas, the States of Rhode Island and Providence Plantations and North Carolina have not as yet ratified the present Constitution of the United States, by reason whereof this act does not extend to the collecting of duties within either of said two States, ... Be it, therefore, further enacted, that all goods, wares and merchandise, not of their own growth and manufacture, which shall be imported from either of said two States of Rhode Island and Providence

Plantations, or North Carolina, into any port or place within the limits of the United States, as settled by the late treaty of peace, shall be subject to the like duties, seizures and forfeitures as goods, wares or merchandise imported from any State or country without the said limits."¹ By this act, these two States were treated as States foreign to the Union. Why? Because not having separately ratified the Constitution, they were not in the Federal Union established thereby, nor subject to its provisions.

By an act approved September 16, 1789,² it was enacted, "That all rum, loaf sugar and chocolate, manufactured or made in the States of North Carolina, or Rhode Island and Providence Plantations, and imported or brought into the United States, shall be deemed and taken to be subject to the like duties as goods of the like kinds, imported from any foreign State, kingdom or country, are made subject to." By the judiciary act approved September 24, 1789, district and circuit courts were established in all the eleven States, and not in the States of Rhode Island or North Carolina.

By an act approved September 16, 1789, it was enacted, "That all the privileges and advantages to which ships and vessels owned by citizens of the United States are by law entitled shall be, until the 15th clay of January next, extended to the ships and vessels wholly owned by citizens of the States of North Carolina, and Rhode Island and Providence Plantations."³ Thus a clear distinction between the privileges granted to citizens of the United States, and those which by favor were extended to the citizens of the two States named, was made. After North Carolina had ratified the Constitution, all of these provisions were extended to North Carolina and ports of entry, etc., established in that State.

for taking a census of the people of the United States. At that time, North Carolina having come into the Union, the census was provided for her. Rhode Island not having done so, was not mentioned in the act. After Rhode Island came into the Union, the census act was, by an act approved July 5, 1790, extended to Rhode Island. So the judicial system was extended to Rhode Island, and the tariff laws and laws for regulating commerce, etc., were extended to the same.¹

This action of the Federal government was a concession on its part that it had no power to legislate within the territory of the two States which had not ratified the Constitution, because those two States had delegated no power to Congress for that purpose. This non-action of Congress, followed by its action taken upon the ratification by each of these States of the Constitution, is indubitable evidence that the Constitution was only ordained for each of those States by its own people and for itself, and that the action of all the other States could give no authority whatever to the Constitution within the limits of those refusing. This peculiar condition of things, however, requires further elucidation.

By the Articles of Confederation, the thirteen States were bound together as a confederacy, with certain rights of intercommunication and of relationship in the league established by these articles, and one of these articles provided that they should not be amended or altered but by the action of Congress, and of the legislature of every State consenting thereto. It was therefore sought to ratify this new Constitution, which was amendatory of these articles and was intended to supersede them, by the concurrent action of not less than nine States, without regard to the dissenting action of not more than four States.

The question would then naturally arise: How could the eleven States, who had ratified the Constitution by the conventions of its respective people, supersede the obligations

of the Articles of Confederation between the thirteen States, when two of the States refused to ratify the new Constitution? This presents a very difficult question, and one which was very much considered by the great men of the period, among whom were the writers of "The Federalist."

It was considered by Mr. Madison with great ability as already quoted,¹ and he vindicates, upon the ground of the "transcendent and precious rights of the people to abolish or alter their governments as to them shall seem most likely to effect their safety and happiness," the action of the convention in allowing less than unanimity of the States to make the proposed change from the Articles of Confederation to the Constitution of 1789.

It is no doubt true that the Federal Constitution, adopted by the sovereign people of the several States, was paramount to the Articles of Confederation, which had been adopted only by the legislatures of the States, and that the States ratifying the Constitution by the sovereign voice of their several peoples might well claim that they were justified in seceding from the two States who refused to ratify, with whom they had been confederated only by the delegated authorities of the legislatures of the respective States.

It is very obvious, however, that the delicacy of this question gave rise to the peculiar provisions of the laws which, we have already stated, were passed prior to the ratification of North Carolina and Rhode Island, relating to duties upon articles from those States. But if North Carolina and Rhode Island had obdurately refused to adopt the Federal Constitution, the permanent policy of the government of the United States must have treated them as foreign States and the eleven as having seceded from the original confederation. And it is to this possibility of a revocation of the Articles of Confederation by the sovereign act of the people to which Mr. Hamilton referred in the statement already

quoted,¹ and which made it important that the new Federal Union should be based upon the consent of the people of the States, and not upon that of their legislatures.

§ 149. All difficulty was, however, removed by the accession of the two States; the one within nine months and the other within fourteen months after the new government went into operation.

The old confederation was ratified by the legislatures of the States; the Constitution of the United States by the peoples of the respective States. The former had rested on the delegated power of the States; the latter was founded on the will of the delegating sovereignty of each State. The one was a confederacy by State governments; the other is a confederacy by State peoples. The former is made by legislatures; the latter by the sovereign Bodies-politic of the States of the Union.

All the historic facts above recited show that the Articles of Confederation were the first Federal Constitution between the States; that they were so named by all the States and by Congress in recommending the Federal Convention of 1787 to revise and amend them; that the Philadelphia convention of 1787 was recommended by Congress "for the sole and express purpose of revising said Articles so as to make the Federal Constitution adequate for the exigencies of the Union;" that the Philadelphia convention did revise that first Constitution, and that the Constitution of the United States is the revision of the "Federal Constitution" for the United States of America. It is the same organism � the same union between States � based upon diverse foundations; the one on the delegated, the other on the delegating authority of the States; the same organism, with increased power, and reform in the machinery of its operations, but the same United States of America, under the Constitution of the United States, as they had been under the Articles of Confederation.

Constitution itself. In Article VI it is provided: "All debts contracted, and engagements entered into, before the adoption of this Constitution shall be as valid against the United States under this Constitution as under the Confederation; ... and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."

It has been sought to overthrow these conclusions by the language of the preamble of the Constitution of the United States, which is in these words: "We, the people of the United States, in order to form a more perfect union, establish justice, and assure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and posterity, do ordain and establish this Constitution for the United States of America." Upon the basis of this language the question is asked: Does it not say, "We, the people of the

United States?" Does it say, "We, the people of these several States, do ordain and establish?" Does not the Constitution, then, itself declare that it is ordained by one people � "the people of the United States," one civil Body-politic, � and not by the peoples of the several States, as distinct and independent Bodies-politic?

This view is that maintained by Judge Story in his "Commentaries on the Constitution."^l He says: "The people do ordain and establish � not contract and stipulate with each other. The people of the United States � not the distinct people of a particular State with the people of other States. The people ordain and establish a Constitution � not a confederation." He cites for this the language of his own opinion in Martin v. Hunter,² in which he says: "The Constitution was ordained and established, not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, 'by the people of the United States.'" He insists that it forms a "Constitution, not a Confederation."

This view is plausible, but a critical consideration of it will show it is unsound.

First. These words are descriptive of the party or parties who do the deed � who ordain and establish the Constitution; not of those who do not do the deed and are not party or parties to it.

Second. They describe the party or parties to the act; not a party who shall exist by virtue of or as a result of the act.

If, then, these words describe those who ordained the Constitution, we may ascertain their meaning by learning what is a fact. It may be admitted that the words are susceptible of two meanings: one, as insisted upon by Judge Story, that the Constitution was ordained by the people of the United States as one civil Body-politic � as one people; or second, that it was the people of the United States, because it was the people of each State acting separately, and of all in combination.

The non-use at that day of the plural form of the noun "people" made it unusual to have said, "We, the peoples of the United States," and more proper to have said, "We, the people of the United States," when it meant the combined act of the people of the several States. When in ordinary language we speak of the people of Europe, we surely should not be hold to mean that they were one civil Body-politic.

The true meaning, therefore, of the words will be obtained by an answer to the inquiry, who were the parties or the party who ordained the Constitution? Was it the people of the United States as one people � as one civil Body-politic? If so, When? Where? How? So far from it, we have seen that Congress, the only organ of all the States, had nothing to do with its adoption, and was expressly and purposely shut out from all action upon it, except as the medium of sending it to the true ordaining authority, � that is, to the legislature of each State, who were to submit it to a convention of the people of each State to be by it ratified for the State.

To interpret the preamble, then, as meaning "the one people of the United States as one civil Body-politic," is to interpret it as meaning a historic falsehood, and one which could deceive nobody at the date of its utterance. On the contrary, it has been shown that for the people of each State it was ratified by the convention of that people as a separate and distinct Body-politic; that without that ratification by such convention it had no force or authority upon the people of that State.

It was proposed by a convention composed of delegates elected by the legislatures of the several States, � not of deputies elected by all the States, as one civil Body-politic in any form. The States voted as co-equal States in the Federal Convention. The Constitution itself declared that it was "done in convention by the unanimous consent of the States present." It was signed by the deputies as deputies of these several States. The people of each State in convention ratified it for itself alone; was bound only by its own act, and could bind no other State. It went into operation only as to the eleven States who ratified it, and did not bind two who respectively refused to ratify it. That is, the United States, as a unit embracing thirteen States, could not, though eleven States consented, bind two who dissented. The Constitution in its terms declared that "the ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution," � not over all the thirteen States, but "between the States so ratifying the same." Thus the Constitution itself provided that it might be established for only nine of the thirteen United States, and might leave four out of the Union established thereby unbound by the Constitution because they severally refused to ratify it.

We have shown that, as a matter of fact, two did refuse to ratify it, and were treated by the government, established by the Constitution for the eleven States ratifying the Constitution, as foreign States to the Union.

States," mean "we, the people of the United States, as one civil Body-politic, do ordain the Constitution for its thirteen fractional parts," it supposes what history says was a falsehood; but if it means that "we, the people of each State of this Union, acting for itself and all others agreeing to its ratification, ordain the Constitution," it speaks the truth.

In determining, therefore, the meaning of the equivocal words, we are placed in the dilemma of accepting an interpretation which history falsifies or which history confirms. In this dilemma, can we hesitate to accept that which is consistent with historic facts, rather than that which historic facts condemn as false?

§ 150. In the Virginia convention, called by the legislature of that State to consider the Constitution, Patrick Henry, who was greatly alarmed at the evil consequences which would result from the ratification of the Constitution, which, with wonderful prevision, he pointed out, and which he desired so to present as to prevent ratification, sounded the note of alarm upon the use of these words in the preamble.

He said:¹ "That this is a consolidated government is demonstrably clear; ... what right had they to say, We, the People? ... who authorized them to speak the language of We, the People, instead of We, the States? States are the characteristic and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated national government of the people of all the States."

Again he said: "Have they said We, the States? Have they made a proposal of a compact between the States? If they had, this would be a confederation; it is otherwise most clearly a consolidated government. The question turns, Sir, on that poor little thing � the expression We, the people, instead of the States of America."²

This alarm sounded by the prophetic orator, "who had been elected as a deputy from Virginia to the Federal Convention, but declined to go," was answered by several gentlemen in the convention. Governor Randolph, a prominent member of the convention, said:^l "The gentleman then proceeds, and inquires, why we assumed the language of 'We, the People?' I ask why not? The government is for the people; and the misfortune was, that the people had no agency in the government before." In this remark he obviously refers to the fact that the confederation had been adopted by the legislatures of the States, while this Constitution was to be ratified by the people of the

Judge Edmund Pendleton, president of the convention, said:² "But an objection is made to the form: the expression We, the people, is thought improper. Permit me to ask the gentleman who made this objection, who but the people can delegate powers? Who but the people have a right to form government? ... If the objection be, that the union ought to be not of the people, but of the State governments, then I think the choice of the former very happy and proper. What have the State governments to do with it? Were they to determine, the people would not, in that case, be the judges upon what terms it was adopted."

expression, "We, the people," and not "We, the States:"³"This expression was introduced into that paper with great propriety. This system is submitted to the people for their consideration, because on them it is to operate, if adopted. It is not binding on the people until it becomes their act. It is now submitted to the people of Virginia. If wo do not adopt it, it will be always null and void as to us. Suppose it was found proper for our adoption, in becoming the government of the people of Virginia, by what style should

it be done? Ought we not to make use of the name of the people? No other style would be proper."

Again he said, referring to a statement made by Mr. Madison:¹ "If this Were a consolidated government, ought it not to be ratified by a majority of the people as individuals, and not as States? Suppose Virginia, Connecticut, Massachusetts and Pennsylvania had ratified it; these four States, being a majority of the people of America, would, by their adoption, have made it binding on all the States, had this been a consolidated government. But it is only the government of those seven States who have adopted it." (Seven States only had ratified it up to that date.) "If the honorable gentleman will attend to this, we shall hear no more of consolidation."

The clear and logical statement of James Madison, who was a member of the Federal Convention, and more than any other man may be regarded as its originator, is conclusive on this point. He said:² "Who are parties to it? The people � but not the people as composing one great body �

but the people as composing thirteen sovereignties; were it, as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment, and, as a majority have adopted it already, the remaining States would be bound by the act of the majority, even if they unanimously reprobated it; were it such a government as it is suggested, it would be now binding on the people of this State, without having had the privilege of deliberating upon it; but, sir, no State is bound by it, as it is, without its own consent. Should all the States adopt it, it will then be a government established by the thirteen States of America, not through the intervention of the legislatures, but by the people at large. In this particular respect the distinction between the existing and the proposed governments is very material. The existing system has been derived from the dependent derivative authority

of the legislatures of the States; whereas this is derived from the superior power of the people."

This language of Mr. Madison is in accord with the statement made by him in the thirty-ninth number of "The Federalist," already quoted.¹ He says: "This assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States derived from the supreme authority in each State � the authority of the people themselves.... The act of the people as forming so many independent States � not as forming one aggregate nation.... It is to result neither from the decision of the majority of the people of the Union, nor from that of the majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority.... Each State, in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary

Chief Justice Marshall, who was a member of the Virginia convention which ratified the Constitution, and who heard the objections made to these words by Patrick Henry, and the full answer to him by Madison, and who voted for the ratification of the Constitution, in McCulloch v. Maryland²

"The convention which framed the Constitution was, indeed, elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States, with a request

that it might ' be submitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by Congress and by the State legislatures the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively and wisely on such a subject, by assembling in convention. It is true, they assembled in their several States; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves or become the measures of the State governments.

"From these conventions the Constitution derived its whole authority. The government proceeds directly from the people, is 'ordained and established' in the name of the people, and is declared to be ordained ' in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.' The assent of the States, in their sovereign capacity, is implied in calling a convention and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State governments. The Constitution, when thus adopted, was of complete obligation and bound the State sovereignties."

It thus appears that contemporaneous with the objections to these words, and to the possible construction of them according to the theory of Judge Story, there was the emphatic condemnation of such a construction by the authoritative declaration of Mr. Madison, both in the "Federalist" and

on the floor of the Virginia convention, as well as by those of a number of eminent men who voted to ratify the Constitution with a denial of the validity of the objection, and that all this was confirmed by the judgment of Chief Justice Marshall, an actor in the Virginia convention of 1788, in an opinion in 1819, in which Judge Story concurred.

§ 151. But a little care in investigating the journals of their convention will put this objection in a clearer light.

The preamble declares: "We, the people of the United States, ... do ordain and establish this Constitution for the United States of America." Let us seek the meaning of these terms, "United States," and "United States of America." It should be remembered that the deputies to this convention which used these terms were from States who were then united under the Articles of Confederation. The best source for the meaning of the terms used by them will be the Articles of Confederation, which clearly define their meaning. The first of the Articles of Confederation declares, "the style of this confederacy shall be the United States of America." When asked, What confederacy? the Articles answer: "The confederation and perpetual union between the States of New Hampshire," etc., naming all. Then "The United States of America" means, by this authentic definition, "the confederacy between the States of New Hampshire," etc.

If, then, we substitute this meaning in the preamble to the Constitution, it will read thus: "We, the people of the confederacy between the States of New Hampshire, ... do ordain this Constitution for the confederacy between the States of New Hampshire," etc. That is, "We, the people," �

not the legislatures, � "of the confederated states of New Hampshire, etc., known as the United States of America, �

do ordain this Constitution for this confederacy between the States. So that by taking the meaning of the terms as they

were in the minds of those who used them, defined by an authentic document under which they were then living, the use of the word "people" in the preamble, instead of the word "States," is shown to have been to express that fundamental distinction to which we have often adverted between the basis upon which the then confederation rested from the basis upon which the new Constitution was to rest: the distinction between the delegated and the delegating authority. This is more obvious from a further fact. The preamble declares that the Constitution was ordained "in order to form a more perfect union." More perfect than what? Clearly, than the perpetual union now existing. But that was a confederation. The preamble does not say it was intended by the Constitution to change the principle of the existing union into a consolidated civil Body-politic, but to form a more perfect union or confederation between the United States than then existed: more perfect in remedying the two vices of the confederation by making the government created by the Constitution act immediately on men, and not mediately through States, and more perfect in resting on the will of the people of the several States than on the legislatures of the several States.¹

§ 152. That this is the key to the construction of these words is evident from many facts in the debates of the convention.

In the consideration of the "Virginia plan," as it was called, the fifteenth resolution, recommending conventions under appointment of the people to ratify the new Constitution,² Mr. Madison spoke of the defect of the Articles of Confederation in resting only upon the legislative sanction, and that it was indispensable that the new Constitution should be ratified by the supreme authority of the people. That resolution was afterwards adopted.³ If we are asked why the present form was adopted, and not one which named

the separate States, a short history of the proceedings on this point will be instructive.

In the first draft of the Constitution, proposed by Mr. Charles Pinckney, of South Carolina, and which as a skeleton outline was entitled to be recorded as the original framework of the Constitution, the preamble read: "Plan of a Federal Constitution. We, the people of the States of New Hampshire, .Massachusetts, Rhode Island (naming all), do declare and establish the following Constitution."¹ On the

6th of August Mr. Rutledge made a report from the committee of detail on the Constitution, which had up to that time been discussed and agreed on. The preamble was the same precisely as that proposed in the Pinckney plan.² On

the 7th of August, 1787, the preamble of the report was agreed to nem. con.³ After debating the plan as reported by the committee of detail for several weeks, a committee was appointed to revise the style of and arrange the articles which had been agreed to by the house. On that committee were Dr. Johnson, Mr. Hamilton, Mr. Gouverneur Morris, Mr. Madison and Mr. King.⁴ We have evidence that

Gouverneur Morris was the member who reported a digest of the plan on the 12th of September. The report contained

Constitution. It does not appear that question of any kind was raised as to this change in the form of the proamble.

We are left, then, to speculate upon the reason of the change which was made. The first form, as we have seen, was adopted by a vote of the convention nem. con. Did the

change in the preamble mean a substantial change of its sense? If it did, then we have the remarkable fact presented, that a form adopted without objection on the 6th of August was radically changed a little more than a month afterwards without objection. This is so incredible that we

are driven to the conclusion that the members of the convention saw only a change in style in the form reported on the 12th of September, and not a change in sense or meaning from that which was agreed to nem. con. on the 6th of August.

The question still remains: Why, then, was the change made? Several reasons may be assigned.

(a) Rhode Island was named in the first draft as one of the States- ordaining the Constitution, but she was not represented in the convention. It might well occur to the critical draftsman of the preamble reported by the committee on style on the 12th of September, that it assumed too much to say that the people of Rhode Island united to ordain a Constitution when she refused to be present in the convention which was formulating it for a reference to the States for ratification. The change is significant as evidence that she could not be put into the Constitution as bound by it unless she were self-bound.

(b) By Article VII of the Constitution of the United States the Constitution could only be established between nine States who should ratify it; the four, or less number, who might refuse to ratify it, would not be bound by it, which four, or less number, who might refuse, could not be known until their action. To name any such possibly refusing States in the preamble as ordaining it by its people would be an anomaly which an adroit draftsman of the style of the preamble would avoid by omitting to name any. Therefore, he used a form of expression which would indicate the States who were to be united by their several ratifications of the Constitution, without their being named at all.

(c). But by the Constitution new States were to be admitted into the union � new States then entirely unknown, and many even at this day unknown, who may become members of the Federal Union. How awkward to name any States in the preamble as parties to the Constitution without naming all who were finally to become parties thereto and members of the union!

These reasons would suggest to the draftsmen on style, that, as the words "United States" meant States united in confederation, under the existing Articles of Confederation, the use of these words in the preamble to the new Constitution would embrace all who were then united, or might thereafter unite, in the ratification of this Constitution. The words "United States" were imported from the old articles into the new Constitution, and by article VI of this Constitution it was the same confederation, responsible under the Constitution for all debts, engagements and treaties made by the United States under the confederation. The use of this general term, therefore, would be the most appropriate, as embracing all then, or thereafter to become, members of the confederation.

When the Federal Convention met at Philadelphia in May, 1787, what was the political status and relation of these States to each other? The cluster of young commonwealths in confederation, induced by the common peril to their liberty due to the action of the mother country, has, upon their own authentic declaration, given the answer to this question. The Articles of Confederation established March 1, 1781, is the most authentic source from which we can derive the actual relations between the States.

By the second of the Articles of Confederation each of these States retained its sovereignty, freedom and independence. The United States of America had none, and only such powers, jurisdiction and right as by that confederation were expressly delegated to the United States in Congress assembled. The sovereignty, freedom and independence of each State was absolutely retained, and also every power, jurisdiction and right not so expressly delegated to the United States in Congress assembled.

The deputies to the Federal Convention at Philadelphia, as we have seen, had authority delegated to them by their respective legislatures to revise the Articles of Confederation

so as to make the Federal Constitution adequate to the exigencies of the union. This was the extent of the powers of the delegates of the States to that convention. The convention, therefore, had no authority to surrender the freedom and independence of each State so absolutely retained by the terms of the second of the Articles of Confederation. The convention had no power to merge the sovereignty, freedom and independence of the several States into one sovereignty of one people of the United States.

The people of the United States, as one sovereign people, not having been previously established by the sovereign States themselves, had no existence, and therefore could not ordain a Constitution for the States. For the people of the United States, as one sovereignty, to ordain a Constitution, required the previous ordainment into such sovereignty of the people of the United States by an authoritative merger of the sovereignty, freedom and independence of the several States. That could only be done by the sovereign States themselves, and it follows as an inevitable conclusion, that that which never had been created could not ordain a Constitution for the States.

The only people which then existed that could, as a sovereign power, ordain a Constitution for the States, were the separate peoples of the States, who retained absolutely their sovereignty, freedom and independence. It is therefore absurd to say that the words "we, the people of the United States," in the preamble to the Constitution, could mean the people of the United States as one sovereignty, which had no existence at that time, and could mean any other than the people of each State as a complete sovereign State, by reason of the retention of its sovereignty, freedom and independence under the second of the Articles of Confederation.

§ 154. A reference to the provisions of the Constitution will sustain this view.

(a) The seventh article of the Constitution, so often referred to, declares "that the ratification of the conventions

of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." The preposition there used is indicative of compact between the ratifying States, and shows that when established it was a bond between the States as still existent parties to the compact between them.

In article IV, section 11, clause 2, it is provided that a person charged in any State with treason, etc., fleeing from justice into another, shall be extradited upon the demand of the State offended upon the asylum State. This shows that treason is a crime against a State; but treason is a crime against sovereignty. Hence the continued existence of a State as a sovereignty against which treason is a possible crime is fully recognized in that clause, and the demand for extradition by the one State upon the other is such a demand between independent sovereigns as not to be the subject of judicial action, but only dependent upon the sovereign will of the asylum State upon which the demand is made.¹

(b) "Treason against the United States shall consist only in levying war against them or in adhering to their enemies." Treason, therefore, is held to be a crime against the individual States and against the States in union, � against the States in union, not as one civil Body-politic, but as the multiple of Bodies-politic "against them and adhering to their enemies." The unit of the United States as a sovereignty against which treason may be committed is therefore negatived, and treason against the multiple of the sovereign units is affirmed.²

(c) The United States "shall protect each of them against invasion." Each one of the multiple of units. The separateness of each is as palpably asserted as the union of the many.³

(d) "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 Congress."¹ This secures the territorial integrity of every State against all external power without its own consent.

(e) The United States government can only have exclusive jurisdiction over a seat of government for itself, or over forts, etc., with the consent of the State within which it may be established.² This fixes the indefeasible domain of each State within its own borders, except by its own consent.

(f) The provision for faith and credit as to public acts and records of any State within every other is matter of compact, and so as to the privileges and immunities of citizens of each State in every other State.³ This shows that, except for the compacted obligation, the distinctness of the States under the Federal Constitution would have excluded any such faith and credit in the one class of cases, or any such privileges and immunities in the other. If the United States were one sovereignty, of which the States were fractions, this would have existed without such provision; but as the United States constituted only a union between sovereign States, it required compact to establish these rights, privileges and immunities.

(g) It is true that the Constitution⁴ puts a number of proprietary limits upon the powers of the States, but these limitations are, as intimated in the cases just referred to, clear evidence that, but for the express limitations, the powers prohibited would have been possessed by the States. These powers so prohibited are in the highest degree evidences of independent sovereignty. In brief, they include the treaty-making power, the power to confederate, the power to make war, etc. The unquestioned existence of these powers in the States, except for this express prohibition, is conclusive evidence that the States as members of the Union possessed all their original sovereignty.

(h) That the United States are not a unit, but a multiple of units, the following language of the Constitution gives indubitable proof:

(2) As to persons "holding any office of profit or trust under them," � not under a unit, but under the multiple of units.²

(4) The eleventh amendment uses the phrase "against one of the United States," � that is, against a unit of the multiple of units.

(5) The thirteenth amendment, adopted since the war, uses the phrase, "any place subject to their jurisdiction," �

(6) The United States "shall protect each of them against invasion," � the multiple protects each unit of the multiple.⁴

(i) The only name by which the union is called in the Constitution is "The United States." Power is delegated to a Congress of "the United States," � to the President "of the United States." The judicial power is that of "The United States."

(j) After the Constitution was ratified and had been in operation for several years, the tenth amendment was ratified as a part thereof. Its language is very clear and distinct and has great pertinency to the question under consideration. It declares: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

First. The United States possess powers by delegation from the Constitution. Except those so delegated, the

⁴ Id., Art. IV, sec. 4. See in accord. Field, J., in Stanley v. Schwalby, 147 U. S. 508, 520, 521.

United States have no power. They have none by original or inherent right, but only as delegated by grant.

Second. The States have by reservation all powers not so delegated to the United States, unless prohibited to the States, so that their possession of power by general reservation is inherent and original, and would continue except for express prohibition. Power exists in the United States by virtue of delegation only. Power exists in the States as inherent by reservation, unless prohibited. The United States hold by grant, � the States are divested of power by prohibition or by grant to the United States. This shows that the States respectively are the original sources of power, of which they may be divested upon their own grant, or by self-prohibition, and that the United States have no powers which they do not derive by grant.

Third. "Reserved to the States respectively or to the people." This means to the State governments respectively or to the people of each State. That this is the meaning of this clause, which, though changed in phraseology, was really suggested by several of the States in connection with their ratifications, will be made apparent from the language of the convention of New York State in their declaration of rights. That convention declared "that every power, jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States or the departments of government thereof remains to the people of the several States, or to their respective State governments to whom they may have granted the same."¹

Rhode Island used the same terms.² Massachusetts adopted this form: "That all powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised."³ South Carolina declared against any construction "that the States did not retain every power not expressly relinquished by them and vested in the gen-

eral government of the union."¹ New Hampshire follows the language of Massachusetts.² Virginia declared "that each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States, or to the departments of the Federal government."³ North Carolina declared substantially in the same language as Virginia.⁴

As each State had already vested in its State government certain powers, and reserved to itself as a sovereign Body-politic others not so vested, it was proper, when the new Constitution granted powers to the United States which had previously been vested in the State governments, that the form proposed and the amendment adopted should contain the two ideas of reservation of powers not delegated to the United States and not prohibited to the States, to the State governments in whom some of such powers had been previously invested, or to the people of each State as the reservoir of ungranted power.

Fourth. The words "are reserved," � not shall be reserved hereafter, but are now reserved, � should be noted. This is a declaration in accordance with the views of the States proposing it, that even the prior ratification of the Constitution involved this essential reservation of power to the State governments respectively, or to the people of the States; and furthermore, that the State thus continued after the government had gone into operation as the reservoir � the sovereign reservoir � of ungranted powers.

If then the question be asked: Have the United States this or that power? this question is resolved by asking: has it been delegated to the United States by the Constitution? If not, they have no such power. If the question is as to State power, it is resolved, not by asking has it been granted to the States by the Constitution, but has it been delegated to the United States, or has it been prohibited to the States?

If neither, then it is held by reservation as an original power of the sovereign State.

In Chisholm v. Georgia^l the Supreme Court decided that a citizen of South Carolina could sue the State of Georgia under the Constitution.² This decision, despite the reasoning of Hamilton,³ created great alarm throughout the union.⁴

The States adopted the eleventh amendment in these words: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." The peculiarity of the language of this amendment must be noted. It does not say that the power to sue a State, asserted in the decision, shall no longer exist, but it declares, "the judicial power shall not be construed to extend to" such a case. It is a mandatory construction of the original Constitution by the States to the judiciary of the United States not to construe the original Constitution as they had done. A command by the delegators of power �

the still existent parties to the original compact � that the judiciary should not construe the Constitution as it had done. The States did not amend or change the Constitution, but gave it a mandatory interpretation.

The Supreme Court of the United States obeyed the voice of the States in the amendment, and swept from its docket every pending suit by a citizen against a State, under the command of the States, who thus claimed not only to have ordained the Constitution, but by ordainment to interpret it.

Again: A number of propositions which looked to congressional supervision of State action under its reserved power were made in the convention.

several States interfering, in the opinion of the legislature, with the general interest and harmony of the union." John Rutledge said: "If nothing else, this alone would damn, and ought to damn, the Constitution." Ellsworth and others sustained his view. The proposal was withdrawn.¹

It was proposed to call forth the force of the union against a delinquent State. Mr. Madison said: "Such an ingredient provides for the destruction of the union. The use of force would look more like a declaration of war, and would dissolve all previous compacts." The proposition was postponed nem. con.

Mr. Hamilton proposed that Congress should have power to pass all laws whatsoever, subject to the veto of the President; to appoint the executive of each State, with the veto power in the case of all their laws; and that the United States should have absolute control of the militia, with the appointment of all its officers. All these proposals failed.²

Some stress has been laid upon the fact that, in the original proposition of Governor Randolph, it was proposed to constitute a national legislature, a national executive, and a national judiciary, and of late years much emphasis has been laid upon the application of the words "nation" and "national" government to the union and to the government of the United States.³

It may be well to point out why these words "nation" and "national" are not to be found in the Constitution as adopted. At an early period of the debate, the committee of the whole reported this resolution: "That a national government ought to be established."⁴ On the 20th of June Mr. Ellsworth moved to amend it so as to read: "That the government of the United States ought to consist," etc. This motion was agreed to nem. con., "which dropped," as Mr. Ellsworth observed, "the word ' national' and retained

the proper title 'the United States.'"¹ Votes were taken by which the word "national" was struck out wherever it occurred in the report of the committee of the whole.² But it appears that the word "national" in the draft of the Constitution reported August 6th was stricken out of every clause in the Constitution reported and never re-appeared.³So that the words "nation" and "national" as applicable to the Federal system and government are not to be found in the Constitution.

The celebrated Gouverneur Morris, the leader of centralism in the convention, said he feared "the States had many representatives on that floor, but America few," and that he was "in favor of another general convention, that will have the firmness to provide a vigorous government, which we are afraid to do." He proposed such a convention, but obtained no second to his proposal. In a letter to Lewis Sturges in 1814, Mr. Morris, whose hand had penned the Constitution as it was adopted, said: "The Constitution was a compact, not between solitary individuals, but between political societies; the people, not of America, but of the United States, each enjoying sovereign power, and of course equal rights." The same view is expressed by the authors of the Federalist. Thus, Mr. Madison,⁴ referring to the suggestions of Montesquieu in favor of a confederate republic as the expedient for extending the sphere of popular government and reconciling the advantages of monarchy with those of republicanism, quotes from him as follows:

"This form of government is a convention by which several smaller States agree to become members of a larger one, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing by means of new associations, till they arrive to such a degree

"Should a popular insurrection happen in one of the confederate States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The State may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.

"As this government is composed of small republics, it enjoys the internal happiness of each, and with respect to its external situation it is possessed, by means of the association, of all the advantages of large monarchies." Mr. Madison then adds:

"The definition of a confederate republic seems simply to be 'an assemblage of societies,' or an association of two or more States into one State. The extent, modifications and objects of the Federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished, so long as it exists by a constitutional necessity for local purposes, though it should be in perfect subordination to the general authority of the union, it would still be in fact and in theory an association of States, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive, and very important, portions of the sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a Federal government."

In the twenty-eighth number of the Federalist, Mr. Hamilton argues that, if the representatives of the people in the general government betray their constituents, no resource would be left but in the existence of the original right of self-defense, paramount to all forms of government � that this could be exerted better against the Federal rulers than those of a State. "In a single State, if the persons intrusted

with supreme power become usurpers," ... the people in their counties and cities "having no distinct government in each can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource," etc. "But in a confederacy, the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will, at all times, stand ready to check the usurpations of the State governments; and these will have the same disposition toward the general government.... If their rights are invaded by either, they (the people) can make use of the other as the instrument of redress." ... "It may safely be received as an axiom in our political system that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.... The legislatures will have better means for information" (than the people);"they can discover the danger at a distance; and possessing all the organs of civil power and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the, different States, and unite their common forces for the protection of their common liberty.... If the Federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces." And then, after stating that there would not be for a long time a large Federal army, he adds: "When will the time arrive that the Federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity and system of independent nations? The apprehension may be considered as a disease for which there can be found no cure in the resources of argument and reasoning."

The same views are pressed by Mr. Madison in the forty-sixth number of the Federalist. "But ambitious encroachments of the Federal government on the authority of the State governments would not excite the opposition of a single State or of a few States only; they would be signals of general alarm. Every government would espouse the common cause. Plans of resistance would be concerted. The same combination, in short, would result from an apprehension of the Federal as was produced by the dread of a foreign yoke," etc.

In the powerful statement of Mr. Hamilton, written to induce the ratification of the Constitution, it will be seen that he calls the government "a Federal government," and the proposed union "a confederacy." That under the proposed Constitution the States, as independent nations with all the organs of civil power and all the resources of the community at hand, could, and should, organize armies to make head against the power of the Federal government, and fight with success against the Federal usurpers of power and the destroyers of the peoples' liberties. According to this view, so far from the union presenting consolidated oneness, it is a multiple of many independent commonwealths, each one of which, by the Constitution, is left with the political power and the physical resources to defend the liberties of the people of each against the Federal despotism.

§ 157. In the eighty-first number of the Federalist Mr. Hamilton discusses the objection made to the Constitution, that a State might be sued by a citizen of another State upon its obligations, and held that this idea was entirely unfounded. His reasons against it, although the decision in Chisholm v. Georgia sustained the jurisdiction (which was taken away, as we have seen, by the eleventh amendment), are very striking upon the point we are considering. He says: "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of man-

kind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal.

... The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident it could not be done without waging war against the contracting State; and to ascribe to the Federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable."

In this passage Mr. Hamilton asserts such continuance of independence and sovereignty in the State as that it cannot be sued except by its own consent, and that its consent in the Constitution of the United States had not yet been given to such suit. We have seen that this view was not held in the case of Chisholm v. Georgia, but that the States themselves, by the eleventh amendment, declared that the judicial power was not to be construed to extend to any such case. So that the States vindicated their non-suability as sovereign commonwealths by the amendment which denied to the judicial power such a construction of the original terms of the Constitution.

§ 158. We have sufficiently, perhaps, indicated that the continuing existence of the States as members of a confederate union is established by the mutual stipulations of the States as to faith, credit, etc., in their several regards; as to the privileges of citizenship; as to extradition of criminals, slaves, etc. These are terms of a compact between States. The provisions, also, by which the States inhibited the exercise of certain powers by each State are stipulations of

compact, and the provision by which the United States guarantees a republican form of government to each State is a stipulation, inter se that each shall retain that form, and that all shall assure it to the people of each.

The language of a great lawyer, Rufus Choate, of Massachusetts, in an address July 4, 1858, finely illustrates this proposition. He says: "I have sometimes thought that the States in our system may be compared to the primordial particles of matter, indivisible, indestructible, impenetrable, whose natural condition is to repel each other, or, at best, to exist in their own independent identity, while the Union is an artificial aggregation of such particles." In other words, the States are natural and original; the Union is artificial

But a further striking illustration may be derived from physical science. By chemical affinity a new substance is created by the union of several distinct substances. A mechanical union of these parts makes a mixture in which the substances, though combined in one mass, are unchanged in character and no new substance is formed. They are mixed, not merged. Thus hydrogen and oxygen may be mechanically mixed forever and the substance of neither be changed; but the electric spark will destroy each and create the dew-drop diverse from either, by the union of both. This mechanical and chemical union of substances illustrates very well the German distinction between staaten-bund (a bond of states) and bundes-staat (a bonded state).

The confederacy is staaten-bund, in which the States exist as the separate Bodies-politic ("primordial particles of matter"), and such a case as the creation of the new kingdom of Great Britain out of the separate kingdoms of England and Scotland by the statute of Anne. The separate kingdoms, as distinct political organisms, were lost by merger into the new kingdom with its new organization; and so as to Ireland under the act of George III. A confederation, however, is, as it were, the mechanical union of diverse Bodies-politic, continuing as such under the confederation,

and co-acting in the functions of a common government, but organically distinct and never merged into a new Body-politic. The union, in the apt words of Mr. Choate, "is an artificial aggregation" of the States, which are the "indivisible, indestructible, impenetrable" primordial political entities; and this is in accord with the language of Mr. Madison,¹where he says: "The Federal and State governments are, in fact, but different agents and trustees of the people, instituted with different powers and for different purposes."

The tenth amendment of the Constitution states this point clearly where it declares that the powers of the United States are powers delegated, but that all not so delegated nor prohibited to the States "are reserved to the States respectively or to the people." The reservation of undelegated and unprohibited powers to the States respectively could not be unless the States still continued as primordial Bodies-politic, to whom, as distinct reservoirs of power, these undelegated and unprohibited powers are reserved.

"The Constitution in all its provisions looks to an indestructible union composed of indestructible States.... There was no place for reconsideration or revocation, except through revolution, or through consent of the States."² If through such consent, or by revolution, the union should ever be dissolved, the "primordial particles," the indestructible States, would remain; but the government of the union and the union itself would perish. The being of the States is independent of federation, but the Federal Union depends upon the being of the States. In the language of Montesquieu, quoted by Hamilton,³ "The confederacy may be dissolved, and the confederates preserve their sovereignty." "Without them the general government itself would disappear from the family of nations."⁴

eminent of the United States, says: "Within its legitimate sphere, Congress is supreme; ... but if it steps outside of its constitutional limitations, and attempts that which is beyond its reach, the courts are authorized to ... annul its encroachments upon the reserved power of the States and the people."^l

A very comprehensive statement is made by Chief Justice Chase in Texas v. White,² in which he says:

"But the perpetuity and indissolubility of the union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom and independence, and every power, jurisdiction and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that 'the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,' and that 'without the States in union there could be no such political body as the United States.' Not only, therefore, can there be no loss of separate and independent autonomy to the States through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the union and the maintenance of the national government."

These views of the Supreme Court are entirely in accord with what we have maintained heretofore. Every government is the delegated agent of some organic Body-politic.

The Body-politic is sovereign; the government is not. Destroy the government, and the Body-politic remains. Destroy the government of a State, and the State still stands.¹But destroy the government of the United States, and what single Body-politic remains? All that would remain would be the forty-five Bodies-politic � the States.

"The States disunited might continue to exist. Without the States in union, there could be no such political body as the United States."² "The confederacy may be dissolved, and the confederates preserve their sovereignty."³ "Without them (the States) the general government itself would disappear from the family of nations."⁴

One brief statement in the letter of Jefferson to Madison, February 8, 1786, reconciles all the diverse statements of the fathers upon this subject. "With respect to everything external, we be one nation only, firmly hooked together. Internal government is what each State should keep to itself." That is to say, we are functionally, as to the powers vested in the Federal government by the Constitution, one, though as independent States we are organically separate. There is no merger or fusion of States into one Body-politic. There is a combination and union of all the States as distinct Bodies-politic in the functional government of the one nation of the United States.

The forty-five stars on our flag make one constellation. Each star is distinct, and one star may differ from another star in glory. But they are united in one galaxy by mutual affinities; a galaxy moving and known by one name in the firmament of Christendom, but each with its original name, its distinct life, its separate motion, its special type of civilization, and its own original sovereignty as a Body-politic. The name of this constellation is itself indicative, not of political unity of one people, but of a political union of

distinct States � United States; that is, States once separated, now united under the Constitution which they have

the States are not organically "one people," but are functionally one, as to all the powers delegated to the United States by, and as to all stipulations inter se in, the Constitution.

The Union is Staaten-bund � not Bundes-staat. Each State is a republic of which the units are men. The United States is a confederate union, of which the units are not men but States. The States still exist as primordial Bodies-politic, and by their organic union they are a confederation of States, � a Republic of Republics, � but not a new composite, or one new civil Body-politic.

§ 160. The views already presented will be emphasized and confirmed by the inquiry now to be made. What is the nature of the government of the United States established by the Constitution?

That it is a democratic republican government � that is, a government whose exercise of power is based upon elections mediately or immediately by popular suffrage, excluding the monarchic and aristocratic idea in all of its departments � needs no special course of reasoning to establish. But the government has one additional feature which it is important to note. It is a Federal government throughout, in whose organism States are factors, and through which the States as such act with their combined powers. In this sense it may be averred that there is no department of the government of the United States, and no function thereof, which is not mediately or immediately impelled or directed by State authority.

§ 161. Congress, the legislative department, is composed of a Senate and House of Representatives.

Let us first consider the Senate. It is "composed of two senators from each State chosen by the legislature thereof

for six years, and each senator shall have one vote."¹ In this body, therefore, the States, as co-equal members of the Union, are represented by senators elected by their respective legislatures, and are the constituents of this body. If the States, as independent Bodies-politic, cease to exist, the Senate could not be constituted, and the United States government would cease to be.

Taking the present census, Nevada, with 40,000 people, has an equal voice in the Senate with New York, with 6,000,000 people; or one man in Nevada has equal voice with one hundred and fifty men in New York. Why? Because States, not men, are constituents of the Senate.

On the other hand, in the House of Representatives the equipollency of the States is disregarded. The power of the State is in proportion to its voting population.² Though this is so, the House is the representative of the States. This appears from the following reasons: The Constitution declares it "shall be composed of members chosen every second year by the people of the several States."³ "Each State shall have at least one representative."⁴ "Until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three," etc.⁵ "Representatives shall be apportioned among the several States according to their respective numbers."⁶ "When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancy."⁷ The number of electors in each State shall be "equal to the whole number of senators and representatives to which each State may be

entitled in the Congress."⁸ In any vote for President in the House of Representatives, "the representation from each

Furthermore, the representative when elected must be an inhabitant of that State in which he shall be chosen. Each

State must have a representative, however small its number, and thus Nevada has a representative for 40,000 people, and New York a representative for every 180,000 people; thus giving disproportion of influence to the inhabitants of the small State to that of the inhabitants of the large State, because the State is represented, and not its people. Furthermore, the voters in each State shall have the qualifications prescribed for voters for members of the most numerous branch of the State legislature; that is, they are prescribed by its own Constitution. The constituent suffragans of the representative are, therefore, fixed as to qualification by State action.

The populations of two small States cannot be combined to elect a representative; there is no merger of statehood in the constituency of representatives in the House; but each State, because it is a State, however small, must have its one representative at least. These facts demonstrate that in the House, as well as in the Senate, States are represented �

in the Senate, on the principle of equipollency of statehood; in the House, in proportion to the numbers of each

Under this system it is obvious that, even in the House of Representatives, the will of a majority of the population of the whole United States may be defeated, because the small States must have one representative, and are therefore not always represented in proportion to numbers. But an act passed by the House approximately representing the will of the members may be defeated in the Senate by a majority of the States which have only about one-fourth of the population of the United States. Thus one-fourth may defeat the will of three-fourths of the population.

This result, which would be so anomalous if the United States constituted but one civil Body-politic, is perfectly explicable when we remember that the union is a union of States, not of men; and that States, not men, legislate for the Union. § 162. Let us now examine the executive power vested in the President of the United States. The President is chosen

by electors. "Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State may be entitled in the Congress." The mode of appointment is absolutely under the direction of the legislature. The number of electors to which each State is entitled combines the principle of State equipollency and the State in proportion to numbers. By this mode Nevada has three electors for her 40,000 people, or one for every 13,000; New York has thirty-six for her 6,000,000 people, or one for every 170,000; thus giving one man in Nevada the weight of thirteen in New York in the election of President.

If an election through the electoral colleges fail, the election of President must be made by the House of Representatives, in which the representation of each State casts the one vote of that State; or Nevada, with 40,000 people, casts an equal vote with New York, with 6,000,000; or one man in Nevada has the weight of one hundred and fifty in New York in the election of a President by the House of Representatives. The President may thus be elected by a majority of States having only one-fourth of the whole population of the Union. And so if there is no election of Vice-President by the electoral colleges, the Senate elects one, in which body the States are equal in vote, and the same disregard of the power of numbers in favor of the equipollency of States as in the election of President by the House is shown. States, not men, are the constituents of the executive.

§ 163. The same lesson may be drawn from the judiciary and other officers of the government. They are nominated by the President, who, as we have seen, is the representative of numbers and the equipollency of States, and confirmed by a majority of the Senate, where the States are equal in vote. Thus States, not numbers, have the largest weight in the selection of the officers of government.

§ 164. The method of distributing the great functions of government adds weight to this view.

Congress has power to declare war. If the House, representing in the main the numerical strength of the States, should favor a declaration of war, a just war may be defeated by one-fourth of the people represented in a majority of the States in the Senate.

Treaties of peace are made by the President, by and with the advice and consent of the Senate; two-thirds of the senators present concurring. Peace may be defeated and the war continued if one State more than one-third of the Senate oppose it, though representing, it may be, only one-twelfth of the people of the United States.

These remarkable results show that, in the important functions of war and peace, the decision is made, not by numbers of men, but at the will of equal States.

§ 165. Lastly, let us examine the power of amending the Constitution of the United States.

Amendments may be proposed by a two-thirds vote of the two Houses of Congress. This denies to a numerical majority of the people of the United States the right even to propose amendments. Such a proposal may therefore be defeated by one vote more than one-third of the States in the Senate; that is to say, the dissent of about one-twelfth of the people may prevent the proposal of an amendment. But the proposed amendment must be ratified by the legislatures or conventions of three-fourths of the several States; so that one State more than one-fourth or one-nineteenth of the numbers of the people of the United States may prevent an amendment of the Constitution. It is true that all the States agreed that an amendment might be made without requiring unanimity of the States. To require three-fourths was agreed by all to be sufficient for amendment. But if an amendment were proposed to take away the equal vote of any State in the Senate � Nevada, for example � it would require the consent of Nevada to validate the amendment. In other words, the equipollency in the Senate of a State containing 40,000 people is secured, though 70,000,000 people in all the other States should demand it; that is, one man in

To state it numerically, eleven States, containing 2,000,000 people, could defeat an amendment ratified by thirty-four States, containing 68,000,000 people; or three-fourths of the States, containing 30,000,000 people, could ratify an amendment, though one-fourth, containing 40,000,000, should refuse to ratify it. But, in this last case, the protection of the populous States against an amendment so favored is to be found in the fact that two-thirds of the House of Representatives, representing the numerical force of the States, must concur in proposing the amendment. These guards were considered ample, because requiring an extraordinary combination of large and small States to fasten any amendment on the Constitution.

The provision which fixed irrevocably the equipollency of each State in the Senate, unless such State surrenders it by its separate consent, is clear evidence that no change in this respect can be made but by a new compact, to which each State, as a distinct factor, must be a party. It proves the continuing and perpetual independence of the State as a primordial political particle, in order to its own protection against the vox majoritatis, whether of population or of States. It proves more. If the State was not to be preserved as an equal in sovereignty, despite a difference in population, there is no assignable reason for thus shielding its equality in the Senate against all action but at its own will and at its own consent. This equality of sovereignty in the Senate of each State is the only unchangeable principle in the whole Constitution. A State in its essential equality can never be destroyed but by its own separate will. This clause as to amendments, therefore, shows that while numbers and States in the two Houses of Congress propose amendments, the States through their separate legislatures or conventions must ratify the proposed amendments, and each State must ratify an amendment taking away its equipollency in the Senate.

States are therefore � and not numbers � the chief factors in amending the constitutional compact.

§ 166. From this review it is obvious that, without the continuing existence of States and State governments de jure and de facto, the Federal government itself would cease to be.

Suppose the legislatures refused to elect senators; where would be the laws, treaties, judiciary and officers of the government? Suppose the States should not provide for the mode of appointment of electors; where would be the executive? Suppose there were no State legislatures; how could the Constitution be amended? If each State as a people ceased to exist, how could the amendments be ratified by a convention of the people of that State?

If the States in their full autonomy as independent Bodies-politic are pulled down, the Federal Samson would be destroyed amid their ruins.

§ 167. During the session of the convention of 1787 there were great conflicts which resulted in two important compromises, one of which related to the organization of power in the machinery of the government, and the other to certain powers of the government and reserved rights of the States, which it is now important to present to the reader.

In that great convention the master minds of the New World were present: Washington and Franklin, Hamilton and Madison, King and Mason, Ellsworth and Rutledge, the Pinckneys and Morrises, Randolph and Gerry, Sherman and Martin, Patterson and Dickinson, Johnson and Wilson, Langdon and Williamson, Davie and Brearly, Wythe and Gorham, Blair and Butler, Livingston and Read, Baldwin and Bedford, and others. They came together with a full sense of the political wants of the era and of the various remedies proposed, impressed with the need for enlarged powers in the general government, but of the essential need of securing the liberty of the people of the States.

How shall a union of all be formed adequate to the defense of each, and the well-being of all the general interest, which will yet conserve the internal polity of the separate States, and the liberty of their people? How shall the diverse interests of the States, as units in this Federal empire, be so represented in the distribution of political authority that power and liberty be not divorced? Revolution had cut the cords which bound these young republics to the thoughts and political philosophy of the old world. To

destroy the old system and to upheave the ancient foundations had been a mighty but successful work. But to construct a new political edifice on a solid basis of constitutional wisdom, this was the herculean labor of our fathers a hundred years ago.

They were too wise to attempt a new order of things. They proposed to amend the old order and give it automatic efficiency; to increase the functions of the old union of States, but not to change radically its organism; to lay its foundation upon the will of sovereign peoples, and not on the caprice of their ephemeral legislatures; to make the many one as to all matters where interests, relations and rights were one, but to leave them separate and many where polity, right and interest were many and distinct. To grant power to all as a right in which all had the same interest was to wed power to right, which is the security of liberty; not to reserve power to each as to rights peculiar to each, and as to which all others were strangers, was to divorce power from right, which is the peril of freedom.

§ 168. Two leading and rival schemes were presented to the convention. The one, the Virginia plan, really matured if not originated by Madison, but introduced and advocated with great ability by Randolph, May 29, 1787; and the other by Judge Patterson, of New Jersey, June 15, 1787. Besides these, a plan in form and fullness of detail more like the instrument finally adopted than any other was proposed by young Charles Pinckney, of South Carolina, on the same day that Randolph presented his proposition. Whether the draft found in the Journal of the Federal Convention and in Mr. Madison's Debates be precisely the same as that presented by Mr. Pinckney may well be doubted.¹ It must have been very much the same, although in details it may have been changed by Mr. Pinckney in the draft which he furnished in 1818. Mr. Hamilton also suggested a plan, June 18th, which was so radically centralizing in its features, and

contrary to the popular views of government which then prevailed, that it was neither referred nor voted on.¹

But the votes of the convention and their debates were chiefly on the rival plans of Mr. Randolph and Mr. Patterson.

Mr. Patterson's scheme involved two main propositions.²His plan proposed in substance:

1st. A single house composed of the representatives of coequal States, as under the Articles of Confederation, with power to raise revenue by custom duties, and by taxes through requisitions on the States.

2d. To make the efficient operation of many of the Federal acts dependent on State action, with a power of armed coercion by the Federal authority against recusant States.

The first of these gave the absolute control of the government as to taxes and other matters to a majority of States, which might be only one-fourth of the whole population.

The second, while giving to Congress the power to enact, without power to execute its purposes except through the States, gave power to Federal authority to coerce them with armed forces. This proposal to use force had been strongly condemned and postponed by unanimous vote of the convention.³ Mr. Patterson's plan was substantially rejected on the 19th of June, 1787,⁴ by a vote of seven States against, three for it, and one State divided. The Randolph plan, which, in a modified form, had been reported from the committee of the whole on the 13th of June,⁵ was then taken up for debate.

To understand the nature of the first compromise in the convention, which related to the organization of power in the legislative department, it may be well to state the facts as to the relative populations of the different States at the period of the convention. Taking the census of 1790 as the approximate measure of relative population, the four largest

States � Massachusetts, Virginia, Pennsylvania and North Carolina � would have had a clear majority of numbers over the other nine States on a basis of popular representation. On the basis of States, seven small States, with about one million of population, would have had a clear majority over the other six with nearly three millions. The second of the resolutions reported from the committee of the whole was in these words: "Resolved, That the national legislature ought to consist of two branches." The word "national" being struck out, the resolution that the legislature should consist of two branches passed, by seven States to three �

one being divided.¹ It will be seen that, if Congress consisted only of one house, the conflict between the basis of representation by States, or in proportion to population, was irreconcilable. The adoption of the bi-cameral plan was therefore an important step in the direction of the final compromise. The proposition to elect the first branch of the legislature by the people was carried by a vote of nine States to one � one State divided.² This proposition did not necessarily involve the non-equality of the States in that branch, but only that the members of that branch should be elected by the people and not by the legislatures of the States.³

The next step was as to the election of the second branch. After many propositions had been rejected, it was finally proposed that the members of this branch be chosen by the legislatures of the States. It passed by the vote of nine States to two. It will be observed that this did not involve the equality of the States, but only the mode of electing its members, and the mode adopted made this branch dependent for its existence on the co-existence of the State legislatures. It conserved the perpetuity of the State governments, by making the existence of the Senate dependent on the coexistence of the State legislatures. If the legislatures were destroyed the Senate would fall with them.⁴

The seventh resolution, which declared that in the first branch the rule of the Articles of Confederation, that is, co-equality of States, should not be maintained, was then taken up. This was the battle ground for a great debate, in which Luther Martin, Sherman, Ellsworth, Madison and others took part. Mr. Madison maintained that State equality as to taxation would give to seven States, with one-fourth of the whole population, power over three-fourths; that the large States under the confederation were protected by their reserved power to refuse to submit to unjust requisitions made by a majority of States � a power they would no longer have under the new Constitution. Sherman said: "The question is, how the rights of the States may be most effectually guarded?" Martin maintained the principle of State equality in the first branch. The firm position of the two contending parties produced a crisis in the convention.

Dr. Franklin solemnly said: "I have lived, Sir, a long time, and the longer I live the more convincing proof I see of this truth, that God governs in the affairs of men. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid? We have been assured, Sir, in the Sacred Writings, that ' except the Lord build the house, they labor in vain who build it.' I firmly believe this; and I also believe that, without His concurring aid, we shall succeed in this political building no better than the builders of Babel." He suggested the opening of the convention each day with prayer.¹

George Mason, on the 7th of June, had spoken of the necessity of giving to the State legislatures some means of defending themselves against the encroachments of the general government; "and what better means can we provide than the giving them some share in, or rather to make them a constituent part of, the national establishment?"² On the 25th of June he had said that the State governments should have the means of self-defense; "if they are to be preserved, as he conceived to be essential, they certainly ought to have

this power, and the only mode left to give it to them was by allowing them to appoint the second branch of the legislature."¹

Dr. Johnson, of Connecticut, on the 29th of June took part in the debate which had brought the convention to the crisis above referred to. He said: "Does it not seem to follow, that if the States as such are to exist they must be armed with some power of self-defense? This is the idea of Colonel Mason, who appears to have looked to the bottom of this matter." And then referring to the fact that the population and States should both be considered, he said: "The two ideas embraced on different sides, instead of being opposed to each other, ought to be combined; in one branch the people ought to be represented, in the other the States."²After further debate the rule of equality for the first branch was rejected: six States against it, four States in its favor, and one State divided.³

Mr. Ellsworth then proposed that the rule of suffrage in the second branch be that established by the Articles of Confederation. He said the first branch being based on population "would secure the large States against the small," and equality of votes in the second branch "was necessary to secure the small States against the large. He trusted that on this middle ground a compromise would take place.... The power of self-defense was essential to the small States. Nature had given it to the smallest insect of the creation." He further said: "All New England, except Massachusetts, would reject the scheme, if some such compromise was not adopted."⁴

Dr. Franklin quaintly remarked: "When a broad table is to be made and the edges of the planks do not fit, the joiner takes a little from both and makes a good joint. In like manner, here, both sides must part with some of their demands, in order that they may join in some accommodating proposition." He then laid on the table for consideration a propo-

sition containing this: "That the legislatures of the several States shall choose an equal number of delegates to compose the second branch of the General Legislature."¹ Mr. Ellsworth's motion allowing each State one vote in the second branch was lost by an equal division: five States to five �

Georgia divided. These several movements resulted in the adoption of the motion of General Pinckney to appoint a committee consisting of one member from each State to report some compromise. After warm debate it was carried: ten States to one.² Adjournment was made July 2d until after the anniversary of the Declaration of Independence; but on the 5th of July the committee made its report. Dr. Franklin in that committee moved for population as the basis of representation in the first branch, with power to originate money bills, and with equality of States in the second branch. This had been Sherman's suggestion on the 11th of June, when it was rejected by a vote of five States to six.³ After long debate, on the 16th of July the proposition involving the representation of States according to population in the first branch, and the representation of States in the second branch, was agreed to by a vote of five States to four � Massachusetts divided.⁴

This ended the great conflict. The compromise thus adopted, by which the States according to numbers were represented in the first branch, and the States as equipollent sovereigns were represented in the second branch, operated to protect a majority of the whole population as to burdens and taxes from the rule of a minority, and to protect the States, as such, from the rule and domination of numbers. This conserved State right of personal liberty to men, but so as to secure individual men in their equal rights of property against an oligarchy through the exclusive power of the small States over the large ones.

right. Power in one branch was given to numbers in order to the security of men in their personal liberty; and power was given to the States in the other branch for the security of the States as free commonwealths. By requiring all law thus to have the assent of both branches, the legislative department was the expression of the philosophic principle of concurrent majorities, by which a majority of each of two conflicting authorities was required to all action in order to the protection of the right of each against the adverse action of the other. This provision for an equal vote of the States in the Senate was clinched by the motion made September 15th, that "no State, without its consent, shall be deprived of its equal suffrage in the Senate," which was unanimously

This was the first great compromise of the convention between the large and the small States.

§ 169. The second compromise was more complicated and involved a larger number of items.

In the original plan of Mr. Randolph, it had not been determined whether to base representation on the quotas of contribution to the treasury, or on the number of free inhabitants. We have seen that the proposition to elect the first branch by the people of the several States was adopted by a vote of nine States to one.

The committee of the whole, which reported nineteen resolutions on June 13th, had in their seventh resolution resolved that the rights of suffrage in the first branch should be "according to some equitable ratio of representation, namely: in proportion to the whole number of white and other free citizens and inhabitants of every age, sex and condition, including those bound to servitude for a term of years, and three-fifths of all other persons." This was according to the ratio proposed by Congress under the Articles of Confederation, April 18, 1783, as the basis for contributions by the States to the Federal treasury. On the 5th of July the ¹ Id. 1592-93.

committee who reported the compromise (composed of one member from each State) fixed the basis of representation in the first branch of the legislature at one member for every 40,000 inhabitants of the description reported in the seventh resolution above recited.

In that resolution,¹ the seventh resolution reported by the committee of the whole is referred to,² which contained the ratio proposed by Congress as an amendment to the Articles of Confederation, April 18, 1783, as to contributions by the States to the Federal treasury; so that the basis proposed April 18, 1783, for the quotas of the States to the Federal treasury was adopted by the convention as the basis of representation in the first branch of the legislature, and the proposition for this as the basis of representation was adopted July 16th by a vote of five States to four.³ On the 9th of July a provision which was finally sanctioned on the 16th of July, for an approximate representation of the several States at the beginning of the government, was added, and provision for changes properly to be thereafter made upon a periodical census were established.⁴

Gouverneur Morris, on the 12th of July, proposed "that direct taxation shall be in proportion to representation." This brought the convention to the point that representation and taxation are correlative, so that representation and taxation in the plan which was passed on the 16th of July were established on the basis of the free population of each State and three-fifths of the slaves.

This matter had been largely debated in the Congress of the confederation, as well as in the convention, upon the point that, if the basis of representation was numbers, all slaves as human beings should be counted; but if slaves were property and not human beings, they should not be. Such a debate was rather a play upon words, and was put aside by a compromise based upon common sense and justice, as above stated, but resting upon the number of the whole free population in each State and three-fifths of the slaves.

In the course of this great debate, Mr. Madison had sagaciously suggested that the real antagonism in the union would not be between the large and small States, which had already been settled by the compromise mentioned, but between the Northern and Southern States. He said: "The institution of slavery, and its consequences, formed the line of discrimination. There were five States on the Southern, eight on the Northern side of this line." (He counted Delaware on the Northern side, which, if counted on the Southern side, would have made seven States on the Northern and six on the Southern side.) "Should a proportional representation take place, it was true, the Northern would still outnumber the other; but not in the same degree, at this time; and every day would tend towards an equilibrium." It seemed to have been the opinion of many members north and south that the population would ultimately preponderate in the south, and that while the north would hold the Senate, the south would ultimately hold the House. This would make each section safe against the domination of the other by requiring a concurrent majority of each House to any legislative action. This turned out to be a great mistake. It will be well now to follow the action of the convention on this delicate question to its close in the compromise, which involved this particular question and a number

§ 170. In the original proposition of Mr. Charles Pinckney, there had been two propositions: one prohibiting any tax on articles exported from the States, and requiring that all laws regulating commerce should have the assent of two-thirds of the members present in the House.

The resolutions adopted by the convention on the 26th of July, twenty-three in number, which were the outcome of the long debates on various propositions, to which we have already alluded, were referred, with the propositions offered by Mr. Charles Pinckney on the 29th of May, and by Mr. Patterson on the 15th of June, to a committee of detail.

Mr. Rutledge delivered the report on the 6th of August.²In that report the provisions against taxes on exports and requiring all navigation acts to have the assent of two-thirds of each House were embraced; also a proposition against a prohibition of all interference with the slave trade, and requiring that direct taxation should be based upon the whole population of the States and three-fifths of the slaves, and making provision for a periodical census to determine these numbers every ten years. The debates upon these various propositions were earnest and prolonged.

The prohibition of the taxes on exports was passed by a vote of seven States to four.³

The question of the slave trade was then debated. The provision, as reported, was against any interference with it, Mr. Ellsworth said: "Let every State import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves."⁴ Mason denounced "this infernal traffic" as originating in the avarice of British merchants. The British government constantly checked the attempts of Virginia to put a stop to it. General Pinckney declared that if he and his colleagues were to sign the Constitution containing a provision to prohibit the slave trade, though they should use their personal influence in its favor, "it would be of no avail towards obtaining the assent of their constituents."⁵ Rutledge said North Carolina, South Carolina and Georgia would never agree to the plan if the power to prohibit the slave trade was granted to Congress.⁶ Sherman said "it was better to let the Southern States import slaves than to part with them, if they made that a sine qua non."⁷ Mr. Morris wished the whole subject to be recommitted, including the clause relative to taxes on

exports and to a navigation act, suggesting that these things might form a bargain among the Northern and Southern

All of these questions were referred to a committee of eleven. On the 24th of August the committee reported. The report embraced these propositions: That the slave trade should not be prohibited prior to 1800, but the slaves might be subject to a duty; the clause requiring a capitation tax to be in proportion to the census, and the clause requiring a two-thirds vote on navigation laws to be stricken out, and no taxes to be assessed on exports. General Pinckney proposed to insert "1808" for the year "1800" in the report. Gorham of Massachusetts seconded the motion. It passed in the affirmative � New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina and Georgia � seven ayes; New Jersey, Pennsylvania, Delaware and Virginia � four noes. A tax or duty not exceeding $10 was to be imposed on each person imported. The capitation clause was agreed to nem. con.¹ Mr. Pinckney moved to require the assent of two-thirds of the members of each House to a regulation of commerce. General Pinckney opposed this motion, because of the liberal conduct of the Eastern States upon the question of the slave trade.²

The language of General Pinckney is to be explained by reference to the fact that an understanding on the two subjects of navigation and slave trade had taken place between the New England States and the three extreme Southern States.³ After a very warm debate, the motion to require two-thirds was rejected, four States to seven, but was finally agreed to nem. con. Mr. Butler, of South Carolina, then moved at once a clause for the surrender of fugitive slaves, which was agreed to nem. con.

The effect of these several provisions was a compromise between the commercial States and the three Southern States

of North Carolina, South Carolina and Georgia, embracing the following propositions:

3d. Representation and taxation to be based on the free population and three-fifths of the slaves.

In connection with the first compromise between the large and the small States, the power of the House, which represented the people, to originate revenue bills was also adopted.¹

[The Constitution having been adopted by the convention and ratified by a sufficient number of States to make it a binding compact between the parties to it, the first ten amendments were incorporated into it before December, 1791; the eleventh amendment was added in 1793, and the twelfth in 1804 � the latter growing out of the Presidential election of 1801.

The first ten amendments were limitations on Federal power, and were adopted, not for the purpose of enlarging the scope of Federal powers, but rather of defining and limiting those already granted in the original instrument.

No other amendments have been adopted by the States except the thirteenth, fourteenth and fifteenth, in the years 1865, 1868 and 1870, respectively. In the next chapter the author, before beginning the detailed consideration of the Constitution, discusses the effect of these post-bellum amendments, and seeks to show that they have in nowise changed the organic structure of the instrument, though enlarged powers and functions, through them, have been accorded to the Federal government

These amendments were considered by the author in a paper read before the Social Science Association, at Saratoga Springs, New York, September 6, 1877. � EDITOR.]

§ 171. We must now proceed to the discussion of the delicate questions which arose out of the conflict of opinion between the States, which resulted in the conflict of arms. Without here discussing the question of secession, it may be stated that three theories as to the right of secession were entertained in the Union. These were as follows:

First. That the Union was a Nation of which the States were subordinate parts, as counties are parts of a State. That the States were not parties to the Constitution as a compact, and that the supremacy of the Federal government and the subordination of the States expressed the relations of the parties to the controversy.

Second. That the Constitution was a compact, but was indissoluble; that the Union was intended to be a more perfect Union than the Confederation, which had been called a "perpetual union;" that membership in the Union by any State, by the act of any one of them, was an indissoluble relation; that it was something more than a compact; that it was the. incorporation of a new member into the political body; that it was final, and there was no place for reconsideration or revocation, except through revolution, or through consent of the States; that it became an indestructible Union composed of indestructible States;¹ that no State could claim to secede relying upon its own judgment that the compact had been violated, because the other States held that it had not been violated, and that the dissenting States could enforce their judgment against the seceding States. In this diver-

sity of judgment there would be an appeal to arms to enforce the compact upon the seceding States.

Third. That the Constitution was a compact; that the right to assume the powers granted thereby, or to re-assume them, had been expressly reserved in the terms of ratification of the original Constitution by the States of Virginia, New York and Rhode Island; and that each State, though not expressly reserving this right, implicitly did so in case the compact were violated; and that, as there was no common arbiter to decide between the diverse judgments of the States, in the language of Kentucky's resolution, "Each party has an equal right to judge for itself as well of infractions as of the mode and measure of redress."

The seceding States stood upon the third theory; the non-seceding States held either the first or second theory, the latter of which was perhaps most clearly pronounced by President Jackson in his famous proclamation of 1832. The government of the Union sought to enforce the view of the non-seceding States, and the seceding States to maintain their opinion by war. After four years of conflict the tribunal of Mars decreed the reconstruction of the Union, and, to speak forensically, did so by decreeing a specific execution of the constitutional compact by the seceding States as defendants in favor of the non-seceding States as plaintiffs. But in decreeing the obligations of the contract against the seceding States, it was bound to decree all the benefits of the Constitution in their favor. It decreed the restoration of the Union under the Constitution as a whole � the bundle of burdens and of benefits. To that decree the seceding States bowed as final. They had submitted to the jurisdiction of the tribunal of war; they joined issue in its forum; the decision was adverse and from it there was no appeal, and they submitted to its irreversible decree, bound by a solemn sense of duty to observe and uphold the terms of the original constitutional Union.

That this was the result of war, and that the war itself did not change the Constitution in any of its terms or pro-

visions, has been fully sanctioned by the decisions of the Supreme Court, in all of which the court, while denying in toto the right of secession � the right to dissolve the Union �

"except through revolution, or through consent of the States," have still maintained that the war merely restored the Union under the Constitution and did not change the Constitution. That it was "a war for the suppression of rebellion," and was not "a war for conquest and subjugation."^l

This well-defined judicial view of the effect of the war is in accordance with reason: to believe that a war to maintain the Union under the Constitution and to restore the union of the States could have been a war to restore the union between the States by subjugation, and not the Union under the Constitution, would be not only adverse to the views of the non-seceding States in the institution and conduct of the war, but contrary to the nature of our free institutions and contrary to the reason of things.

And this view is emphatically confirmed by the fact that the Congress of the United States proposed to all the States, the seceding States included, important changes in the Constitution itself by amendments to be consented to by the States under that Constitution; � thus recognizing the continuing integrity of the Constitution itself as the bond of union, and that that Constitution could only be changed by virtue of amendments proposed and ratified in the mode which the Constitution itself prescribed. If the war destroyed slavery in the States, which the Constitution did not allow, where was the necessity of the thirteenth amendment, which was adopted by three-fourths of the States, declaring the abolition of slavery? The adoption of the amendment was a concession by the government of the United States, and all the States, that the war per se could not abolish

ions of the fourteenth and fifteenth amendments. It may, therefore, be regarded as a settled principle in respect to the Constitution, that it was not changed in any respect by the war.

This is made more clear by looking to the States which adopted the several amendments. The thirteenth amendment was ratified by twenty-seven States, of which number the seceding States � Virginia, Louisiana, Tennessee, Arkansas, North Carolina, South Carolina, Alabama and Georgia �

eight in number � ratified it, and without their ratification it would not be to-day one of the amendments of the Constitution. The fourteenth amendment was ratified by three-fourths of all the States, of whom a part were the seceding States. The fifteenth amendment was ratified by twenty-nine States, of whom nine were of the seceding States.

§ 172. What was the effect of the thirteenth, fourteenth and fifteenth amendments upon the character of the constitutional relations of the States to the government of the United States?

As has been said, these amendments were ratified under the fifth article of the Constitution of the United States providing for amendments, without requiring unanimity of the States; but it will be noted that the requisition of less than all in order to ratify the amendments was agreed to by all as sufficient, under the article of the original Constitution, for amendments. All the States originally agreed that amendments ratified by three-fourths should bind the other fourth without their concurrent ratification; and thus, by the immediate or mediate consent of all the States, the original Constitution and all the amendments to it were made parts thereof by the consent of all the States.

It may be said that this amendment abolished slavery in States without their consent, and that this was the invasion of State autonomy. But in reality it is petitio principii to say that the abolition of slavery was effected without the consent of the several States in which it had existed, for a large

number of the slave States ratified that amendment. Their consent was therefore given to the act. But the States that did not ratify it had bound themselves to agree to amendments of the Federal Constitution upon a ratification of such amendment by three-fourths of the States. Their mediate consent was given through the power of amendments to which they had consented, though immediate consent was

The thirteenth amendment was adopted on this principle: that the existence of slavery had been, was, and would be, an apple of discord between the members of the Union. It had been the fatal occasion of the civil war. That the States should consent to make it a part of the Constitution, that the institution of slavery should no longer be allowed anywhere in the United States, was therefore a matter for reasonable agreement and compact between the States, and was in analogy to like provisions in the original Constitution. Thus, each State had agreed to be, and to continue, a State with a republican form of government. This was because it was believed no union could succeed between the States unless all its members were republics.¹ This provision denied to States the right to establish any other than a republican form of government in them. Similarly it was matter of compact that the right to import slaves might be forbidden by Congress after 1808.

Both of these limitations upon State power were self-imposed, with a view to the success of the Union. They did not impair State autonomy, except as the several States assented to them as a means of making a better union.

For like reasons the amendment for the abolition of slavery was an agreement between the States (as might have been agreed in the original Constitution) that slavery should cease everywhere, as a means of producing amity and concord between the members of the Union. But furthermore, the amendment involves the concession that, except for the agreement of the States in the ratification of this amend-¹ Const U. S., Art. IV, sec. 4; also Federalist, Nos. IX, XLIII.

ment, slavery might still exist in any one of the States. The amendment, by declaring that slavery should cease everywhere in the United States, recognized the pre-existent right of each separate State to allow slavery within its borders; and by the use of the phrase, that it should cease in every "place subject to their jurisdiction," it recognized the jurisdiction of the United States in places outside of the several States as a multiple of the many separate States. So far, therefore, from this amendment contravening the nature of the old Constitution, it sustains and supports the views already taken of the relations of the Union to the States pre-existent to the war and this amendment.

§ 174. Let us now discuss the fourteenth amendment. This amendment, in the first section, declares: "All persons born, or naturalized in the United States, and subject to the jurisdiction thereof" (i. e., in any one of the United States, or in any Territory or fort, or in the District of Columbia), "are citizens of the United States, and of the State wherein they reside." In the case of Dred Scott v. Sandford¹ it was decided that no negro was a citizen within the meaning of the judicial clause of the Constitution which gave jurisdiction to the Federal courts in suits between citizens of different States. The enslaved race, freed by the consent of the States to the thirteenth amendment, and no longer capable of being enslaved, were by this clause of the fourteenth amendment advanced to the status of citizenship of the United States, as well as of the State wherein they resided.

The decision in the above-named case had excited a very hostile sentiment among the Northern States, and, as slavery was destroyed, this amendment was intended to give the status of citizenship to the liberated slaves, so as to reverse the decision in the Dred Scott case, and extend the jurisdiction of the Federal courts, under the clause referred to, to cases in which the negro might be a party. Question had also been raised in the Southern States, whether the original Constitution, which provided that "the citizen of each State

shall be entitled to all the privileges and immunities of citizens in the several States," gave to a negro in any State this right of citizenship � whether the negro was entitled to the benefit of this clause of the Constitution.

It is obvious that the above-cited provision of the fourteenth amendment, as to who should be citizens of the United States and of the State wherein they reside, was proper to be adopted, in order to settle the questions which had arisen prior to the war and prior to the abolition of slavery. The States agreed by this amendment that the intercommunication of the privileges and immunities of citizenship should be extended to the freedmen, and that the right of suing in the Federal courts, which had been denied in the Dred Scott case, should also be extended to them.

The amendment did more. After having defined citizenship of the United States and of the State, it declared that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The proposal of this provision implies that but for it a State might abridge the privileges of a citizen of the United States, and that it was necessary to prohibit this by an amendment by the States themselves. It was competent for the States, by self-constraint, to agree not to abridge the privileges of citizens of the United States. They did consent by adopting this amendment, and thus, by mutual stipulations, abridged

The question now arises, what are the privileges or immunities of citizens of the United States as to the abridgment of which no State shall make or enforce any law?

It will be perceived that the terms of this amendment sharply differentiate citizenship of a State and of the United States. He has rights as the citizen of a State which do not belong to him as a citizen of the United States, and vice versa. Can the citizen of the United States vote or hold office or carry on business in every State though not a citizen thereof?

Before considering these questions, we may unite the fourteenth amendment to the fifteenth amendment, which de-

clares that "The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude."

In Minor v. Happersett¹ the Supreme Court unanimously decided that suffrage was exclusively under State jurisdiction, except "as to race, color, and previous condition of servitude," and that the Constitution in no part of it gave the citizens of the United States any such privilege in any State, and the United States could confer none such; and in this case the court substantially say that, as to citizenship of the United States, the fourteenth amendment did nothing more than introduce into that class those who had been excluded by the effect of the Dred Scott decision.

In Bradwell v. State² the court decided that the State had exclusive authority in respect to those who should practice law in its courts, and that the right so to practice was not a privilege of any one as a citizen of the United States.

In the Slaughter-House Cases³ the Supreme Court entered into a very full consideration of the character of the fourteenth amendment. The court defined the right of a citizen of the United States in these general terms, as "those which owe their existence to the Federal government, its national character, its constitution or its laws;" in other words, whatever right a citizen has by virtue of the Federal Union, Constitution or government, he holds as citizen of the United States, all others as citizen of a State.

The word "citizen" (as claimed by some authorities) philologically has the same root as "quies" or rest; thus it signifies the status of one in rest and safety under governmental power. And, as the citizen has two governments, under each of which he has security of rights, he is a citizen of the United States quoad its Federal power, and of the State quoad the State power.

citing the Slaughter-House Cases,¹ said: "We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance and whose rights it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other."

The language of the court in the Slaughter-House Cases² is explicit. This decision was rendered in 1872, after the ratification of the thirteenth, fourteenth and fifteenth amendments. Mr. Justice Miller delivered the opinion of the court, and after referring to the public sentiment which induced their adoption, he said: "But however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States, with powers for domestic and local government, including the regulation of civil rights � the rights of person and property, � was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States and to confer additional power on that of the Nation."

The same course of reasoning would apply to all the detailed provisions of the fourteenth amendment.

In the rapid and constant intercourse between the States and their busy commerce, it was intended by the States to give the mutual assurances that the privileges and immunities of a citizen of the United States should not be abridged by any law of a State, and that the life, liberty and property of all persons should be under the protection of equal laws; but such provisions could not be supposed to affect

radically the nature of the Federal system, any more than those in the original Constitution, which assured to the citizen of any State the privileges and immunities of citizens in the several States, or which forbade the States to pass laws impairing the obligations of contracts and the like.

§ 175. Two other provisions of the fourteenth amendment remain to be noticed.

The third and fourth clauses are in effect a condemnation of the act of secession by the States of the Southern confederacy, and this act is denounced as insurrection and rebellion and created a disability on the part of those who participated in the same, and who had taken an official oath to support the Constitution of the United States, to hold any office, civil or military, under the United States, or under any State, and prohibited the United States or any State from paying any debt or obligation accrued in aid of insurrection or rebellion against the United States. This amendment is, by the concurrent consent of the States, a sanction to the theory that the compact between the States is permanent, and that no State can be absolved from it but by the consent of the States or through rebellion.¹

Such an interpretation by the States as the supreme power of the Union, acting as the mandatory and interpreting authority (as in the eleventh amendment), must be taken to settle the conflict of opinion which honestly existed among men prior to 1861, that the States are not bound by a compact revocable or dissoluble at the will of one or more States, but by a compact irrevocable and indissoluble, except by the consent of all, unless through the supreme right of revolution, which Mr. Hamilton says is above all forms of government.²

It may therefore be considered as settled upon the basis of reason, and upon that of judicial decisions, that while these amendments have increased the powers of the general government to some extent, and have abridged the powers of the States, and have given interpretation to the nature of the

constitutional compact between them, yet that in all essentials, the system of our Constitutional Union, its structure and its fundamental principles have not been changed. It is a union of States, of which the only bond is the Constitution, a permanent compact, adopted freely by all the States,

as parties to it; whereby a government was created into whose every organ the forces of each State, drawn from its legislatures and its people, are infused, and whereby citizen rights in each are secured in all, and the honor and dignity of each is respected and accredited by every State; and by the terms of which the delegated power is made supreme over all and each only when exercised in pursuance of the Constitution; while the powers not so delegated nor forbidden to them are reserved to the governments and people of the States; thus securing by this double system of governments (checks each upon the other), safety and respect among the nations; peace and safe commerce among ourselves under the Federal government; and justice, right and self-rule under the States, as the homes of the people.

§ 176. In the study of this great instrument, the historical development of which we have traced through the five eras of constitutional history, it will be proper to direct attention to the orderly arrangement of its parts. This is important in connection with the subject of its interpretation.

Article I is devoted to the framework and powers of the legislative department of the government.

Article IV embraces stipulations as to interstate relations, and as to those of the United States to the States and Territories.

Article V prescribes the mode of amendment of the Constitution of the United States.

Article VI defines the relation of the Constitution of the United States to the several States, and to the officers of government, State and Federal, and the obligations of the United States under the Federal Constitution to the obligations of the same created under the Articles of Confederation.

Article VII prescribes the mode of ratifying the Constitution, and what shall be necessary for its establishment between the States.

The document closes with a declaration of the authority by which it was proposed, its date, and the signatures of the States thereto by their respective deputies.

This arrangement of the instrument will be found to be important in aid of the construction of its various parts.

§ 177. Before discussing the Constitution in its details, it is necessary that we should determine the principles upon which it should be interpreted, and fix upon certain rational canons for the interpretation of its various parts.

In a former part of this work¹ we have defined a constitution substantially as any ordination by the Body-politic �

the sovereign power of the people � which constructs a government for the State, and prescribes and defines its powers. Such ordination may be the outgrowth of institutions, and therefore institutional, or it may be evidenced by a written

The British Constitution, as we have seen, was the historic outgrowth of the institutions of the English people, many of the principles secured therein being established from, age to age in the form of written declarations of rights, such as the Magna Carta in 1215, the Petition of Right in 1628, and the Bill of Rights in 1688-89, declared by the Convention-Parliament of that date upon the accession of William and Mary to the throne. But we have seen that this British Constitution, valuable as it is, was really adopted by the Convention-Parliament, and not by the sovereign people as a Body-politic. It was ordained by king, lords and commons � the three estates of the realm, � and constituted these three estates of the realm as the government of the kingdom, with an omnipotence de facto in the government so created, which was irresponsible save to itself. From age to age new precedents, in the distribution of political power and for the assurance of popular rights, were established by this omnipotent Parliament, and thus the Constitution itself is mutable by the omnipotent government which was created by the Convention-Parliament. "It is," in the language of Mr. Gladstone, "the most subtle organism which has proceeded from progressive history;" but as a constitutional ordainment by the Body-politic, unchangeable by the authority of the government it created, it cannot be deemed a constitution created to our American idea of such an instrument.

The American idea implies that a constitution is a sovereign act of the people as a Body-politic by which the government is created and organized, and powers are delegated to it and distributed among its departments through the original essence of political supremacy which is in the people. This Constitution creates a government by its creative and sovereign fiat, and the government holds all its powers through grant from the sovereignty, and none by inherent or original title.

The British Constitution is therefore mutable; the American Constitution is immutable. The British Constitution may be modified by the government without reference to the consent of the real Body-politic; the American Constitution is unchangeable by the government, and the government can acquire no new power nor change its structure, except by a new and amendatory act of the sovereign power.

Whether our fathers derived the idea from others, or from their own reflections, or from both, the doctrine of the sovereignty of the Body-politic as an essence, and the powers of government as merely emanations from this essence of sovereignty, had firm practical hold upon the sages of our revolutionary era. The Body-politic is the source of all authority; the government is the agent or trustee it creates and to which it delegates powers. The sovereignty of the Body-politic is original and inherent; the powers of the government are derivative. The one is the irresponsible and original creator; the other its responsible creature. The one delegates power; the other is the delegated trustee. The one is principal; the other agent. The one is omnipotent; the other limited in power. "The powers that be" are, therefore, primal and secondary. The Body-politic is primal, paramount and supreme; the government secondary, dependent and subordinate.

It will suffice to quote as authority for these fundamental principles the Bill of Bights of Virginia and that of Massachusetts.

tion declares: "That all power is vested in and consequently derived from the people; that magistrates are their trustees and servants, and at all times amenable to them." Its third

"That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; of all the various modes and forms of government that is best which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable and indefeasible right to reform, alter or abolish it in such manner as shall be judged most conducive to the public weal."

The Constitution of Massachusetts, adopted in 1780, declares in Article V of the Declaration of Rights:

"Art. V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive or judicial, are the substitutes and agents, and are at all times accountable to them." In Article VII it is declared:

"Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interest of any one man, family or class of men; therefore the people alone have an incontestable, unalienable and indefeasible right to institute government, and to reform, alter or totally change the same when their protection, safety, prosperity and happiness require it."

"The end of the institution, maintenance and administration of government is to secure the existence of the Body-politic to protect it and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life; and whenever

these great objects are not obtained, the people have a right to alter the government and to take measures necessary for their safety, prosperity and happiness."

These doctrines were enunciated by these two leading States, the first and the most powerful in that era, and were repeated substantially in the bills of rights of all the original States, and the great Declaration of Independence substantially embodies the same doctrine in the following words:

"We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute a new government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness."

§ 178. The original Constitutions of the several States of the Union, as those now existent, were the ordinations of the sovereign people of each, and not of their governments. The same was true, as we have seen, in the adoption and establishment of the Federal Constitution. The Federal and State Constitutions each framed and created a government, adjusted its mechanism between the different departments, and then defined and limited their powers. The Constitution in each case created the government, and the government resulted from this creative fiat and not otherwise. This creative authority was original and inherent, from which source alone the powers of government were respectively derived. The one was paramount and supreme; the other subordinate and bound to obedience.

A marked difference must now be noted between State Constitutions and the Federal Constitution. In the structure of a State Constitution it is to be noted that "the immense

mass of legislation,"^l which is proper for and is reserved to the State governments, is incapable of enumeration; and therefore these governments are deemed to have all powers which are not in express terms, or by implied intention, denied to them. The only powers they have, or can have, are delegated by the Body-politic, but all are presumed to be delegated which are not thus denied in express terms, or by implication, because enumeration of these is impossible.

The case of the Federal Constitution is different. As, prior to its adoption, large powers had been delegated to the State governments, and as the grant of any such to the new Federal government would be taken from the State governments, and as the Federal government itself was constituted for certain general purposes affecting all the States and for the common defense of all, a new constitutional rule was proper to be adopted to wit: That all powers should be granted in the Federal Constitution by enumeration, by delegation, so that the powers vested in the United States by the Constitution should be clearly defined, and "the immense mass of powers" not so granted should, by general reservation, be retained by the States or by the people.

The Federal Constitution, then, is one of grant and delegation of powers to the Federal government. The State Constitution is one in which the powers are presumed to be delegated unless limited by express or implied prohibition. In the case of the Federal Constitution, then, the question of power necessarily is: "Has the power been granted?" In respect to the power of a State government the question is: "Is the power in question prohibited expressly, or by implication, by the State or the Federal Constitutions?" In the one case non-delegation is equivalent to denial of power. In the other case non-prohibition is equivalent to

§ 179. The key to the interpretation of the Federal Constitution may be found in the instrument itself, and is con-

firmed by the proceedings of the convention which proposed it, and of the State conventions which ratified it; by the cotemporaneous declarations of the period in which it was adopted; and by the judicial decisions of the Supreme Court of the United States.

First. The tenth amendment is clear. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

3d. Powers reserved, which are not in the first two classes; that is, neither delegated to the United States nor prohibited to the States.

This shows distinctly that the powers of the United States are those which are delegated by the Constitution, and that the powers reserved to the States are those not so delegated nor prohibited to the States. We must therefore reach the conclusion that the line of demarcation between the powers of the United States and the powers of the States must be defined by an enumeration of the powers delegated to the United States; for, as the Constitution does not enumerate powers reserved, but does enumerate powers delegated, no other line of demarcation could be adopted. The special enumeration of powers granted to Congress is found in extenso in the Constitution.¹ This is confirmed by the express words of the Constitution: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."²

The same is true of the executive authority³ and of the judicial powers.⁴ In reference to these three departments,

the legislative, executive and judicial, the structure of each department defined in Articles I, II and III is followed by a clear and precise enumeration of the powers vested in each. Thus, while the enumeration of the powers of the United States in all its departments is the measure of Federal power, it is quite as clear, on the other hand, that the limits to State power are prescribed by precisely expressed prohibitions.¹The Constitution of the United States itself, therefore, shows that the Federal government holds by the delegation of precisely enumerated powers, and the States by a general reservation of all powers not so delegated and not expressly prohibited to them.

This opinion is confirmed by the proceedings of the convention which proposed the Constitution. Without adverting in detail to these proceedings, one fact may be stated which is conclusive on this point. After the plan of Mr. Charles Pinckney was presented,² in the sixth article of which³ the powers granted to Congress were precisely enumerated in terms almost the same as in the Constitution finally adopted, Mr. Hamilton read a sketch embracing his views, in which the only definition of legislative power was "to pass all laws whatsoever," subject to the executive veto.⁴The outline communicated to Mr. Madison, of what he (Hamilton) would have wished to be the proposed Constitution, contained this definition of power: "The Legislature of the United States shall have power to pass all laws which they shall judge necessary to the common defense and welfare of the Union."⁵ The proposition first referred to was not proposed by Hamilton, and was permitted to rest in oblivion, without consideration, by the convention.

In the original plan proposed by Mr. Randolph⁶ it was provided that the National Legislature should "enjoy the legislative rights vested in Congress by the Confederation,

and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.¹

Mr. Patterson's plan, as far as powers were concerned, was drawn in terms which gave to Congress some important enumerated powers, in addition to those granted to Congress by the Articles of Confederation. The action of the convention upon these various schemes proposed was very significant, made from the committee of detail, to whom the Randolph, Pinckney, and Patterson plans were referred. The Hamilton plan was not even referred to that committee. The Pinckney scheme was that reported by the committee of detail, as far as the definition of the powers of Congress was concerned,² and in its general framework was that finally adopted, with many modifications, so that the action of the convention clearly evinces its purpose to define the extent of Congressional power by a precise enumeration of those intended to be delegated. The same general result will be seen by reference to the proceedings of the State conventions which ratified the Constitution. Thus in the Virginia convention one speech may be referred to, and that the speech of John Marshall on the 16th of June, 1788, when the power of the General government and of the States in respect to the militia was under discussion. The whole speech is worthy of perusal, but it is too long for insertion. A few extracts may be given. He said:

"The State governments did not derive their powers from the General government. But each government derived its powers from the people; and each was to act according to the powers given it.... Could any man say that this power was not retained by the States, as they had not given it away? For does not a power remain till it is given away? The State legislatures had power to command and govern

their militia before, and have still, undeniably, unless there be something in this Constitution that takes it away.... There are no negative words here. It rests, therefore, with the States.... All the restraints intended to be laid on the State governments (besides where an exclusive power is expressly given to Congress) are contained in the tenth section of the first article.... The power of governing the militia was not vested in the States by implication; because being possessed of it antecedent to the adoption of the government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been; and it could not be said that the States derived any powers from that system, but retained them, though not acknowledged in any part

This language of the great chief justice, when a party to the ratification of the Constitution by the convention of Virginia, is conclusive upon the point which we are considering, that the States retained all powers not exclusively delegated to the United States or not expressly prohibited to the States.

The same views will be found in several numbers of the Federalist. Mr. Hamilton says:²

"The State governments would clearly retain all the rights of sovereignty which they before had, and which wore not by that act (the Constitution of the United States) exclusively delegated to the United States. This exclusive delegation, or rather this alienation of State sovereignty, would only exist in three cases: where the Constitution in express terms granted the exclusive authority to the union; where it granted, in one instance, an authority to the union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the union to which a similar authority in the States would be absolutely and totally contradictory and repugnant."

He illustrates the first of these by the exclusive jurisdiction given to Congress over the District of Columbia. The second, by the power given to Congress to lay and collect duties, etc., and the prohibition to the States to lay any duties on imports or exports.¹ The third is illustrated by the power given to Congress to prescribe an uniform rule of naturalization; as each State, if it possessed this power at all, would prescribe a distinct rule, that power is excluded by the grant to Congress of the right to establish an uniform rule.

Again: "The rule that all authorities, of which the States are not explicitly divested in favor of the union, remain with them in full vigor, ... is clearly admitted by the whole tenor of the instrument.... We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States.... This circumstance is a clear indication of the sense of the convention and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary."²

§ 180. Mr. Madison says:³ "The proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects and leaves to the several States a residuary and inviolable sovereignty over all other objects."⁴

Mr. Madison, in his celebrated report of 1799, lays down this canon of construction as to the powers of Congress, including what has been termed the coefficient power,⁵ which he declares to be a power in Congress to exercise "all the incidental and instrumental powers necessary and proper for

^l Const. U. S., Art. I, secs. 8, 9. ² The Federalist, No. XXXII. See also Id., Nos. XXXIII and XXXIV. ³ Id., No. XXXIX.

carrying into execution all the expressed powers: ... It is not a grant of new powers to Congress, but merely a declaration for the removal of all uncertainty, that the means of carrying into execution those otherwise granted are included in the grant.

"Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not, Congress cannot exercise it."¹

The judicial decisions of the Supreme Court confirm these views. A citation of a few of these will be made.

"It is perfectly clear that the sovereign powers vested in the State governments by their respective Constitutions remain unaltered and unimpaired, except so far as they were granted to the government of the United States." (He refers to the words of the tenth amendment in confirmation.) ... "The government, then, of the United States can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication."

In Gibbons v. Ogden,³ Chief Justice Marshall, speaking of the situation of the States prior to the Constitution, said:

"It has been said that they were sovereigns, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their Congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to

enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which the change was effected. "This instrument contains an enumeration of powers expressly granted by the people to their government." Again:¹ "In our complexed system, presenting the rare and difficult scheme of one general government whose action extends over the whole, but which possesses only certain enumerated powers; and of numerous State governments which retain and exercise all powers not delegated to the Union, contests respecting power must arise."

In the great case of M'Culloch v. Maryland,² Chief Justice Marshall laid down this canon of construction, which was not in the interest of a strict construction of the Constitution, but of a fair and liberal one, and has been sanctioned in a number of later and recent cases in the Supreme Court of the United States:

"Let the end be legitimate; let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."³

Mr. Hamilton proposed a rule in the cabinet discussion of the bank question, which is quoted by Mr. Justice Field in the Legal Tender Cases,⁴ and which is very similar to the rule given above by Chief Justice Marshall. Mr. Hamilton said: "If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end and is not forbidden by any particular provision of the Constitution, it may be safely

³ Accord: Calder v. Bull, 3 Dall. 386; Briscoe v. Bank of Kentucky, 11 Pet. 257; Gilman v. Philadelphia, 3 Wall. 713; Lane County v. Oregon, 7 id. 71; Hepburn v. Griswold,

8 id. 603; Collector v. Day, 11 id. 113; Slaughter-House Cases, 16 id. 36; Legal Tender Cases, 12 id. 457; United States v. Cruikshank, 92 U. S. 542-50. ⁴ 12 Wall. 641.

§ 181. A fair and comprehensive statement by an able author and jurist may be added, as well for its intrinsic merit as because it gives a confirmation of the views insisted upon by a jurist who cannot be regarded as especially partial to a strict construction of the Federal Constitution. It also confirms the distinction above taken between the construction of powers under a State Constitution and under the Constitution of the United States.

"The government created by the Constitution is one of limited and enumerated powers, and the Constitution is the measure and the test of the powers conferred. Whatever is not conferred is withheld, and belongs to the several States, or to the people thereof. As a constitutional principle this must result from a consideration of the circumstances under which the Constitution was formed. The States were in existence before, and possessed and exercised nearly all the powers of sovereignty. The Union was in existence, but the Congress which represented it possessed a few powers only, conceded to it by the States, and these circumscribed and hampered in a manner to render them of little value. The States were thus repositories of sovereign powers, and wielded them as being theirs of inherent right;

the Union possessed but few powers, enumerated, limited and hampered, and these belonged to it by compact and concession. In a confederation thus organized, if a power could be in dispute between the States and the Confederacy, the presumption must favor the States. But it was not within the intent of those who formed the Constitution to revolutionize the States, to overturn the presumptions that supported their authority, or to create a new government with uncertain and undefined powers. The purpose, on the contrary, was to perpetuate the States in their integrity, and to strengthen the Union in order that they might be perpetuated. To this end the grant of powers to the Confederacy needed to be enlarged and extended, the machinery of government to be

added to and perfected, the people to be made parties to the charter of government, and the sanction of law and judicial authority to be given to the legitimate acts of the government in any and all of its departments. But when this had been clone, it remained true that the Union possessed the powers conferred upon it, and that these were to be found enumerated in the instrument of government under which it was formed. But, lest there might be any possible question of this in the minds of those wielding any portion of this authority, it was declared by the tenth article of the amendments that 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.'

"From what has just been said, it is manifest that there must be a difference in the presumption that attends an exercise of National and one of State powers. The difference is this: To ascertain whether any power assumed by the government of the United States is rightfully assumed, the Constitution is to be examined in order to see whether expressly or by fair implication the power has been granted, and, if the grant does not appear, the assumption must be held unwarranted. To ascertain whether a State rightfully exercises a power, we have only to see whether by the Constitution of the United States it is conceded to the Union, or by that Constitution or that of the State prohibited to be exercised at all. The presumption must be that the State rightfully does what it assumes to do, until it is made to appear how, by constitutional concessions, it has divested itself of the power, or by its own Constitution has for the time rendered the exercise unwarrantable."¹

Again (citing Ableman v. Booth, 21 How. 506, 520; United States v. Cruikshank, 92 U. S. 542), he says:² "The Congress of the United States derives its power to legislate from the Constitution, which is the measure of its authority; and any enactment of Congress which is opposed to its pro-

visions, or is not within the grant of powers made by it, is unconstitutional, and therefore no law, and obligatory upon

And again (citing Ex parte Milligan, 4 Wall. 2, 120), he says:¹ "The Constitution itself never yields to treaty or enactment; it neither changes with time, nor does it in theory bend to the force of circumstances. It may be amended according to its own permission; but while it stands, it is 'a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.' Its principles cannot, therefore, be set aside in order to meet the supposed necessities of great crises. ' No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy and despotism, but the theory of necessity on which it is based is false; for the government within the Constitution has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.'"

This judicious and comprehensive summary by an eminent judge is a fitting statement of the general principles established by the adjudications of the Supreme Court in a number of cases, and is fully sustained by the language of Chief Justice Waite in United States v. Cruikshank,² in which he says: "The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States." And again: "Within the scope of

its powers as enumerated and defined it is supreme and above the States; but beyond, it has no existence."

§ 182. From these principles so clearly announced, we may venture to deduce certain canons of construction.

First. The interpretation must neither strain to enlarge or to diminish the powers of Congress, but by fair reason reach the mind of the Constitution of the United States.

(a) Powers expressly granted. A large number of these are enumerated in the eighteenth clause of Article I, section 8, of the Constitution of the United States.

(b) Powers granted to it by clear implication from temporary or qualified negation of power to it. Thus, "the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808." In this clause the prohibition to the exercise of the power prior to a fixed time is a clear implication of the power to be exercised after that time.¹ Again: "The privilege of the right of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." This clause involves the implication of the power to suspend the privilege when such an exigency arises.² Other cases may be cited.³

(c) "The power to make all laws which are necessary and proper to carry into effect" the powers granted by Congress to the government of the United States, etc. This is the most difficult of construction, the difficulty arising out of the constitutional meaning of the two words "necessary" and "proper."

faculty of doing a thing? What is the ability to do a thing but the power of employing the means necessary to its execution? What is a LEGISLATIVE power but a power to make LAWS? What is the power of laying and collecting taxes but a legislative power, or a power of making laws to lay and collect taxes? What are the proper means of executing such a power but necessary and proper laws? This simple train of inquiry furnishes us at once with the test of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and calumniated provision in question do, more than declare the same truth, to wit: that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect? I have applied these observations thus particularly to the power of taxation. But the same process will lead to the same result in relation to all other powers declared in the Constitution. And it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. If there be any thing exceptionable it must be sought for in the specific powers, upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless."

This statement shows that this clause in the Constitution expresses nothing more than would have resulted from the grant of the enumerated powers to Congress without the insertion of the clause referred to. In other words, that there is an inevitable inference of power to adopt the means necessary to the execution of the expressly enumerated powers. If such inference of power were excluded, it would render nugatory the powers expressly granted, because the means

for executing them would be denied, though the powers themselves were granted. But great contention has arisen in political and forensic discussions and in the opinions of judges upon the meaning of the words "necessary and proper." Notably this contention was developed in the discussion of the Legal Tender Cases.¹

"In construing this clause" [the "necessary and proper" clause] "it would be incorrect and would produce endless difficulties if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power.

"Where various systems might be adopted for that purpose, it might be said with respect to each, that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution."

And in M'Culloch v. Maryland,³ he said to the same effect : "We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended; but we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people." And then he formulates the canon already quoted,⁴ "Let the end be legitimate," etc.

What then is the meaning of this word "necessary?" On the one hand a strict construction has been insisted

¹ Hepburn v. Griswold, 8 Wall. 603; Knox v. Lee, 12 id. 641-42; Juillard v. Greenman, 110 U. S. 421.

⁴ § 195. See also the Legal Tender Cases, supra, and the opinions of the judges; Juilliard v. Greenman, 110 U. S. 421.

upon, based on the etymological meaning of the word, which would make it mean indispensable; a sine qua non to the principal power � a power in aid of the principal power lest it should cease to be.

It is obvious that the purpose of the power defined in these phrases is to make it coefficient to the expressly granted power; but in the execution of the principal power several means may be adequate for the purpose: e.g., to collect duties; the designation of the officers who are to compose the machinery of collection may be involved; a discretionary choice between various forms of this machinery, either one of which would be adequate to the purposes, and therefore no one of which would be indispensable. It would result from this strict construction of the word "necessary" that, unless Congress could show that the machinery it finally selected was the only practical one, it could not be said to be indispensable, and therefore would not be necessary under this construction. It is obvious, therefore, that the word used in the Constitution to make the granted powers efficient would, by this interpretation of the phrase, not only fail to do so, but absolutely paralyze all the granted powers, and this is the reasoning of Chief Justice Marshall, above quoted.¹

On the other hand it is just as clear that there should be a close relation between the legislative means and the legislative end. The law necessary to carry into execution a principal power should be plainly ancillary to such power, and it should be enacted, because without it, or some like means, the principal power would cease to be. No means, so selected, should be for itself as an independent exercise of power, but should be selected bona fide by the legislative power as one of the indispensable methods by which the existence of the principal power should be preserved. It must not be enacted to accomplish an end not within the grant of powers, or adopted for some other purpose under the deceptive pretext of being a means to an execution of some granted

powers. It must not be adopted for an illegitimate end in fraud of the Constitution and under cover of being selected as a means to the legitimate end of carrying out a power granted in the Constitution. This principle is very clearly involved in the decision of the Supreme Court in the case of M'Culloch v. Maryland, supra, where the chief justice says that the power to create a corporation "is never the end for which other powers are exercised, but a means by which other objects are accomplished.... The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is therefore perceived why it may not pass as incidental to those powers which are expressly given, if it be direct mode of executing them."¹

Again, speaking of the fact that the power to grant charters to corporations was not expressly enumerated, he adds: "Had it been intended to grant this power as one which should be distinct and independent, to be exercised in any case whatever, it would have found a place among the enumerated powers of the government. But being considered merely as a means, to be employed only for the purpose of carrying into execution the given powers, there could be no motive for particularly mentioning it."

Again: "Should Congress in the execution of its powers adopt measures which are prohibited by the Constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial

¹ Accord: Story on the Constitution, § 1257; 1 Hamilton's Works, 113-116, 130, 131, 136.

department, and to tread on legislative ground. This court disclaims all pretensions to such a power."

These considerations lead to this conclusion. While on the one hand, in the interpretation of the word "necessary," we must not give it the meaning of absolutely indispensable, yet, on the other, it must be found to be one among many possible means which might be suggested for use, each and all of which are indispensable as means to the end of the execution of an expressly granted power; and on the other hand, it must be so construed that no legislation shall be adopted for its own sake, unless it be an expressly granted power which is not one among many possible means which is indispensable to the execution of a granted power. Congress cannot, therefore, be confined to all legislation which is the only, and therefore indispensable, means to the execution of power, but is excluded from all legislation which, though it might be selected as a means to carry out a granted power, is not selected for any such purpose, but is enacted as the end in view, unless that end be among the enumerated objects for Congressional legislation. It must be adopted bona fide as a means necessary to the execution of an express purpose, and not mala fide for the execution of the ancillary power, which is not within the legitimate and enumerated powers of the Constitution. It must be an ancillary power, and not the principal. So much for the meaning of the word "necessary."

§ 183. What is the meaning of the word "proper" in the phrase referred to? This word, which radically is derived from prope (near), and is associated with the family of names of which properly, appropriate, propriety, etc., are members, moans that the legislation referred to must belong to, be fitted to, be plainly associated with, the powers to be carried into execution. The legislation must be appropriate; or, in the language of Judge Story, "it has a sense at once admonitory and directory. It requires that the means should be bona fide appropriate to the end."¹ This view is cited by Chief

Justice Chase in Hepburn v. Griswold¹ and in the Legal Tender Cases.² This meaning of the word "proper" is involved in Chief Justice Marshall's canons already quoted, in which he says: "All means which are appropriate, � which are plainly adapted to that end, � which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

It must be observed that the legislation now under construction in aid of granted powers must be "necessary and proper," and however necessary any means proposed should seem to be in the opinion of Congress, it will not be constitutional unless it shall be proper. On the other hand, however appropriate it may be, unless it be a necessary means to effect the end, it will not be authorized by this clause. The two words together may therefore be interpreted as embraced in the canons of Chief Justice Marshall, supra.

1st. The nature of the employed power exercised as a means must be legitimate; in other words, no power will be employed as a means to any end which is not legitimate, that is, not within the powers granted by the Constitution. The ancillary legislation must be a necessary and proper means to accomplish an end which is clearly constitutional.

Thus Mr. Hamilton, while maintaining that Congress could create a bank to carry out the fiscal operations of the government, says: "The only question in any case must be, whether it (the corporation) be such an instrument or means to carry into execution any specified power, and have a natural relation to any of the acknowledged objects of government. Thus, Congress may not erect a corporation for superintending the police of the city of Philadelphia, because they have no authority to regulate the police of that city. But if they possessed the authority for regulating the police of such city, they might, unquestionably, create a corporation for that purpose." In other words, the power to create a corporation as a means to an end within the powers

of Congress was constitutional; to create it for means not within the powers of Congress was unconstitutional.¹

2d. But though the end be legitimate and be within the scope of the Constitution, no means are appropriate which are not plainly adapted to that end. The means must not only be adapted, but plainly adapted, to the constitutional end.

3d. No means are appropriate which are prohibited by the Constitution. The express prohibition condemns such a construction of those words; for how could the Constitution expressly condemn what in its view was "necessary and proper" to be done?

4th. No legislation can be proper which is inconsistent with the letter and spirit of the Constitution; hence the trial and conviction of Milligan to death by court-martial, though claimed to be a means for the preservation of the Union, was held unconstitutional, because such trial and conviction were forbidden by the Constitution;² and where, taking the whole Constitution in its distribution of powers between the departments of government, and the relation it establishes between the granted powers to the Federal government and the reserved powers to the States, the act is not in accord with the whole scheme, but inconsistent with it, � it is unconstitutional.³

5th. If Congressional legislation be inconsistent with the reserved rights of the States and their autonomy, it is unconstitutional.⁴

6th. If legislation be contrary to the trust nature of the power of Congress � that is, to the duty which Congress owes in respect to the subject-matter of the legislation to all the States, or to any one of them, � it would be contrary to the letter and spirit of the Constitution.⁵

proper, and therefore unconstitutional, to exercise it for a purpose either forbidden, or not within the scope of its granted powers. This is a fraud upon the Constitution of the United States. It does by indirect what it cannot do by direct legislation, and operates upon a subject which is put beyond its reach by the Constitution itself. Judge Marshall in Gibbons v. Ogden,¹ speaking of the Federal power of taxation, said: "Congress is authorized to lay and collect taxes, etc.; to pay the debts and provide for the common defense and welfare of the United States. This does not interfere with the power of the States to tax for the support of their own government; nor is the exercise of that power by the States an exercise of any portion of the power that is granted to the United States. In imposing taxes for State purposes they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other."

This shows distinctly that it is an unconstitutional exercise of the taxing power by Congress to use it for any purposes which are within the exclusive province of the States. It thus operates by indirection upon subjects reserved to the States, by exercising a power granted for one purpose to accomplish another, upon which it has no right to exercise jurisdiction. It is a fraud upon the Constitution of the United States by an indirect use of a granted power in order to pass the line of demarcation which the Constitution has prescribed between the granted and reserved powers. It is not "proper," for it is a means used by Congress to accomplish an end which is not legitimate because it is not within the scope of the Constitution.²

8th. Cases may arise where the power granted to Congress is exclusive; that is, the possession of the power by Congress is absolutely inconsistent with the exercise of the same power

by the State. Thus Mr. Hamilton pointed out¹ that these exclusive grants to the Federal government might be either from the express term "exclusive legislation;"² or where the grant of power to Congress in one clause is followed by a prohibition of that power to the States; or where Congress has power to establish a uniform rule of naturalization and uniform laws on the subject of bankruptcy.³ In such cases the establishment of a uniform rule by Congress would exclude and annul the effect of any rule on those subjects enacted by the States.

This last class of cases of exclusive power in Congress has given rise to this contention: Does the existence of the power exclude the exercise of it by the States, or does the exercise of the power by Congress alone exclude State power? We shall note hereafter some nice distinctions on this subject. Thus, the power granted to Congress to lay taxes on any subject may be concurrently exercised by the States, except where it is forbidden to them.⁴

§ 184. And so we see Congress has power to provide for organizing the militia. The existence of this power does not exclude, unless Congress exercises it, the States from organizing their militia.⁵ But if Congress exercises its power, it is supreme and paramount to the law of the State. So as to the uniform law for bankruptcy. This does not exclude, it is said, the power of the States to pass bankrupt laws not impairing the obligation of a contract, unless Congress establishes an uniform rule of bankruptcy.⁶

Again, certain regulations of commerce, as the erection of light-houses and the like, which Congress may exercise, and thus exclude the States from inconsistent exercise, may,

⁶ Sturges v. Crowninshield, 4 Wheat. 122, 195-96; Ogden v. Saunders, 12 id. 213, 264-65.

if Congress does not exercise it, be exercised by the States; and so as to post-offices and post-roads. It would be absurd to say in either of those last two cases that the States could not protect their commerce by light-houses and the like, or organize a post-office department, if Congress refused to do either. The capacity to do, without the assertion by Congress of the power, cannot exclude the capacity of the States to do these acts.

At the same time, under this subject, two distinctions must be taken. Where the power of Congress and the power of the State is, in cases of concurrent powers, exercised on the same subject-matter, the paramount effect of the Congressional action must be conceded. But, on the other hand, Congressional and State power may be exercised on the same object, but not the same subject-matter, and, in any such cases, the concurrence of their powers will not conflict. Under the first of these an illustration may be presented: Congress and the States may tax, concurrently, for their diverse purposes, lands and other property. The powers do not conflict: that of Congress does not exclude that of the State.

Under the second head, where a State erects light-houses to protect its commerce, in the absence of exercise of such power by Congress, Congress may supersede and change such regulations by its paramount power to regulate commerce; the power of regulation, when in exercise, being inconsistent with and repugnant to a concurrent exercise by the State.

Third.¹ "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all 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 senators and representatives 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."^l

1st. Over the laws of Congress, which only become the supreme law of the land when "made in pursuance thereof."

3d. Over treaties made, or which should be made, or caused to be made, under the authority of the United States � that is, under the authority delegated to the United States by the Constitution.

This supremacy is to be maintained through the judicial department of the States and of the United States, because it is declared that the judges in every State shall be bound thereby � that is, in their judicial action they must recognize the supremacy of the Constitution. And Federal and State judges are to be bound by oath to support this Constitution. Out of this arises the clearly-established doctrine throughout this country that every law of any State or of Congress, as well as every act of Federal officers inconsistent with the Constitution of the United States, is void.²

In the exercise of this great judicial function of determining, in respect to every right involved in any case, that the Constitution shall have paramount effect in respect to such right over any act or law of any department or officer of the State or Federal government, the court, State or Federal, exercises a clear judicial power and no more. It cannot repeal a legislative act, however repugnant to the Constitution, for such repeal would itself be a legislative function which the court cannot exercise. It simply adjudges that a law which is in conflict with the supreme law can have no effect, but must be adjudged null and void.

It will be perceived, however, that the court must take care, in the exercise of its judicial function, that the law in conflict with the Constitution has no effect, because it is no law at all; that it does not trench upon the legislative power by repealing a law which is valid because in pursuance of

the Constitution. If the court be in doubt whether a law be or be not in pursuance of the Constitution � where the repugnancy is not clear and beyond reasonable doubt, � it should refrain from making the law void in effect by its judgment, lest it should be really repealing a valid law by legislative act, instead of declaring it void by judicial act.

This delicate duty of the judicial department has led to the rule, now well established, that the court usurps legislative functions when it presumes to adjudge a law void where the repugnancy between the law and Constitution is not established beyond reasonable doubt. Its duty to refrain from legislative functions is paramount to its duty to declare the law void, because its jurisdiction to decide at all must be established before it undertakes to pronounce a decision.

"It is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other."^l

"It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt."²

It has already been shown that in considering these questions the judiciary defer to the legislative department in all cases where the latter's action is left by the Constitution to its discretion as to the means it may adopt, or the determination of the circumstances under which the power is to be exercised, according to the circumstances and conditions prescribed for the exercise of the power in the Constitution; e. g., suspension of the privilege of habeas corpus, and the like.

President in the exercise of executive functions; e. g., the recognition of the belligerency or independence of a foreign State. Where the Constitution has confided to the legislative or executive department discretion as to time or circumstances precedent to their action, the courts leave to these departments the exclusive decision as to the exercise of the power.

§ 185. A singular class of cases remains to be mentioned. Suppose one part of an act be, in the judgment of the court, unconstitutional, will that induce the court to declare that other parts of the act, which are not unconstitutional, shall share the fate of annulment pronounced against the other? The rule seems to be, where the two clauses, the one unconstitutional and the other constitutional, are perfectly distinct and separable, the one may be adjudged null and the other stand; but if they are so connected and dependent on each other as to warrant the belief that the legislature hold them to be dependent the one upon the other, intending all to stand or none, then the unconstitutionality of the one will infect the whole, and the entire act will be judicially held to be void.¹

The obligation of the Constitution on a judge in respect to his judicial functions is different from its obligation on a legislator or executive officer. Both are bound by oath to

support the Constitution, but we have seen that the oath of the judge binds him to support the Constitution as to the proscribed limits of his jurisdiction as a precondition to his discharge of his function in declaring a law to be unconstitutional. His duty to do the latter depends upon whether his jurisdiction extends to it, and unless it clearly extends to it, in undertaking to decide on the unconstitutionality of a law he may pass the boundaries of his jurisdiction, and exercise the legislative power of repeal; therefore he cannot

¹ Commonwealth v. Hitchings, 5 Gray. 482, and other cases cited by Cooley on Constitutional Law, pp. 152-53; Cooley on Constitutional

Limitations, 178-79; United States v. Reese, 92 U. S. 214; Pollock v. Farmers' L. & T. Co., 158 id. 501, and cases therein cited.

declare a law void or unconstitutional unless for clear and undoubted repugnancy. The case is different with the legislator and the executive. He is bound to support the Constitution, � to uphold it as one of the pillars to an edifice. He is under the Constitution, not above it. He cannot support it by doing an act repugnant to it. "His public office is a public trust." If he doubts his power to do under the authority of the Constitution, he is bound to resolve the doubt against the act, not in favor of it.

Mr. Cooley thus states it: "Legislators have their authority measured by the Constitution; they are chosen to do what it permits, and nothing more, and they take solemn oath to obey and support it. When they disregard its provisions they usurp authority, abuse their trust and violate the promises they have confirmed by an oath. To pass an act when they are in doubt whether it does not violate the Constitution is to treat as of no force the most imperative obligations any person can assume.... A witness in court who would treat his oath thus lightly, and affirm things of which he was in doubt, would be held a criminal. Indeed, it is because the legislature has applied the judgment of its members to the question of its authority to pass the proposed law, and has only passed it after being satisfied of the authority, that the judiciary waive their own doubts and give it their support."^l

He holds the same views as to the duty of the President, and maintains that the President, even where the judiciary has sanctioned the constitutionality of an act, is not only not bound to give his approval to a similar act, but may, in consonance with his duty, withhold his approval.² It follows from this, that a legislator cannot justify a vote for a law on the ground that as judge he could not declare it void. The legislator crosses no forbidden line when he refuses to enact what he believes repugnant to the Constitution. The judiciary does cross a forbidden line where it declares a law

void, unless it be without doubt repugnant to the Constitution. The legislator is never warranted in voting for a law he does not believe the Constitution sanctions, to support which he has sworn as an affirmative duty, not that he will not pull down the pillars of the edifice, but, as one of the many pillars, he will uphold it.

In the case of the law-maker, the question to be asked is: "Have I a right under the Constitution to pass the act?" The onus is for him to show his authority. In the case of a judge, the question is: "Is the law clearly unconstitutional? In annulling the law in support of the Constitution will I transcend my judicial functions and usurp the legislative; or is the repugnancy so strong that I will only act judicially in annulling the effect of the law, and not transcend the boundary of my power?" The burden shifts in the two cases. The legislator must show that he has the right; the judge must show the legislator was clearly wrong.

Hence the law-maker may not justify a vote for a measure which as judge he could not declare void; but, if the judiciary declares such an act unconstitutional, it should forbid the law-maker to pass similar legislation. On the other hand, though the judiciary cannot declare a law unconstitutional because not clearly repugnant, it does not justify the law-maker in voting for it.

§ 186. We come now to the consideration of the Constitution of the United States in its details.

The Preamble will be first considered. This, as it stands in the Constitution, was reported from the committee of style on the 12th of September.¹ In the original scheme of Mr. Pinckney, and in the report of the committee of detail, it did not have the words defining its objects.² As finally adopted it is in these words: "We, the people of the United States, in order to form a more perfect 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 Constitution for the United States of America."

In the scheme proposed by Mr. Randolph, however, it was "resolved, that the Articles of Confederation ought to be so corrected and enlarged as to accomplish the object proposed by their institution, viz.: common defense, security of liberty, and general welfare." This obviously referred to the third of these articles, which contained these words: "The said States hereby severally enter into a firm league of friendship with each other for their common defense, and security of their liberties, and their mutual and general welfare."

The meaning of the word "preamble" (Latin, preambulare � to walk before) is an introduction to the main subject, but no part of it. It may declare the purpose of enacting a law and the general scope of it, but it is "strictly speaking no part of it."³ "When the words of the enacting clause are

clear and positive, recourse must not be had to the preamble." And though the preamble is said by Lord Coke to be a key to the understanding of the statute, yet "the true meaning of the statute is generally and properly to be sought from the body of the act itself."¹

And so Judge Story says: "The preamble never can be resorted to, to enlarge the powers confided to the general government or any of its departments. It cannot confer any power per se. It can never amount, by implication, to an enlargement of any power expressly given.... Its true office is to expound the nature and extend an application of the powers actually conferred by the Constitution, and not substantively to create them."²

(a) The first few words taken with the last few words declare that "we, the people of the United States, do ordain and establish this Constitution for the United States of America." It declares the parties to the act of ordaining and establishing the Constitution, and for whom it was done. We have already sufficiently discussed this part of the preamble,³ and have shown that the declaration, in order to be consistent with the facts, must mean wo, the people of each of the United States, by a convention thereof, did ratify and thus ordained and established the Constitution for itself and for such others, in all not less than nine, as should ratify the same in like convention.

(5) "In order to form a more perfect union." "The Articles of Confederation and perpetual union between the States" (naming all) had formed a confederacy which the first of the articles styled "The United States of America."

This preamble of the Constitution declares the purpose of that Constitution "to form a more perfect union," �

"a more perfect union" than the union established by those articles, but still a union as those created between the States.

The two vices in the original Articles of Confederation have been so fully discussed¹ that a simple statement will serve our purpose now. The Articles of Confederation rested upon the consent of the legislatures � the delegated authority of the several States. This was removed by resting the new Constitution on the foundation of the consent of the sovereign people of each State � the delegating authority of powers to all governments. The union was, therefore, more perfect, because resting upon the most solid foundation known among men; that is, on the sovereignty itself, and not upon the delegated agent of sovereign powers.

The other vice was, that Congress under the Articles of Confederation had capacity to will, but no power to execute its own will. It was dependent for the execution of the powers with which it was vested upon the caprice of thirteen separate and distinct independent State legislatures. This great vice was removed by giving to the new Federal government the use of the means and instruments which its own legislation could devise for carrying into full and independent exercise the powers with which it was vested.

Again, the union was more perfect in the grant of larger powers to the Federal government, especially in respect to commerce, foreign and interstate. All these powers will be noted hereafter. It was more perfect in the constitution of an executive department independent of Congress, �

the only executive authority existing under the Articles of Confederation being a committee appointed by Congress itself. It was more perfect in the constitution of a judicial department, clothed with judicial functions commensurate with the legislative and executive functions vested in Congress and the President, respectively. Under the Articles of Confederation there was no judicial power except in Congress itself, or transient commissions which Congress might create, and their power was only with respect to controversies between the States, with one apparent exception.

Moreover, the union was more perfect in the organization of the legislative department itself. Under the Confederation Congress was uni-cameral, composed of equipollent States, all of whose acts were passed by a vote of a majority of States, or by a vote of nine, without reference to the numbers of people in the States. Under the new Constitution Congress was bi-cameral. In one House, the States were represented in proportion to numbers; in the other, according to the equipollency of statehood; thus conserving the rights of numbers and the rights of States by requiring concurrence of both to action, and this concurrence which might produce injurious results was to be checked by the qualified negative of the President upon all legislative action. It may be comprehensively stated that in the distribution of powers and in the limitations upon the abuse of powers in the better demarcation of the delegated from the reserved powers, the Constitution ordained a more perfect union than that which had existed between the same States under the Articles of Confederation.

(c) "Establish justice." This obviously referred to provisions which prevented injustice between man and man, or between State and State, and the establishment of an efficient judiciary for the adjudication of rights.

Under the first branch may be mentioned provisions forbidding bills of attainder and ex post facto laws by Congress or by the States; the provisions forbidding the States to make anything but gold and silver coin a legal tender, and forbidding the passage of any act impairing the obligation of contracts and forbidding States to emit bills of credit. During the history of the Confederation great troubles had arisen through the laws of the States, which by these provisions were prohibited. All such laws were not only unjust, but produced great ill feeling throughout the Confederation.¹

But the chief meaning of these words was the establishment of the judicial department. During the period of the

Confederation the treaties which Congress made were subject to adjudication by the courts of the several States, which made great diversity of decision upon the interpretation of those treaties, and the rights of foreigners under them. The United States were responsible to foreign nations for the observance of these treaties, and thirteen judicial tribunals had power to interpret them. How could justice be established in the midst of such confusion of decisions?¹ To produce uniformity of judgment upon which the United States might stand, the creation of a Federal judiciary was essential as a means of establishing justice. Again, suits by foreigners and suits by citizens of one State against those of another, questions of right between any parties arising under the stipulations of the Articles of Confederation, were necessarily finally to be adjudged in the court where the defendant resided. And so questions of prize, maritime laws and admiralty, in which other States and foreign countries were involved, must be finally adjudged in some one State. This gave rise to great ill feeling and heart-burning complaints of the injustice resulting from partial decisions due to the locality of the tribunal and the citizenship of parties.

To remove all these difficulties, and to give uniformity of decision as to questions arising under the laws of the Federal government and treaties made by its authority, and as to contracts and litigation between citizens of different States, etc., by submitting these questions to the judgment of some tribunal which was free from bias or prejudice, was an essential means of establishing justice.² These words, therefore, may be regarded as pointing especially to the class of cases herein referred to.³

(d) "Insure domestic tranquillity." This refers to two objects: the first expressed in the provision of the Constitu-

474; Penhallow v. Doane, 3 id. 54; Jennings v. Carson, 4 Cr. 2; Trevett v. Weeden, 1 Thayer's Cases on Const. Law, 73; Federalist, No. VII.

tion¹ requiring the United States, on application of the State legislature or executive, to take measures against domestic violence, and to guarantee to each State a republican form of government; thus securing against conflicting rivalry, and securing uniformity of State governments in the family of States. Analogous to this, is the greater power of the States in union to suppress insurrection in any one.²

But the other great object indicated by these words, most prominent in the minds of the framers of the Constitution, was the effect of union in preventing interstate wars. If the States were disunited, the danger of constant war between them cannot be overlooked. And this danger would be enhanced from the peril of intervention by foreign nations, who would be interested to alienate them, and by the separate relation of each State to foreign countries multiply the occasions of war with them, separately and with them in union, in the proportion of the numbers of the States to one.

The assurance of domestic tranquillity, therefore, to all the States inter se and against foreign nations, by their forming a more perfect union, was expressed with great force by the authors of the Federalist.³ A perusal of these papers, which cannot well be condensed, will fully repay the reader. In No. VI, Mr. Hamilton quotes a passage from Abb� de Mably which is worthy of insertion. "Neighboring nations are naturally enemies of each other, unless their common weakness forces them to league in a Confederative Republic, and their Constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy, which disposes all States to aggrandize themselves at the expense of their neighbors." Mr. Hamilton adds: "This passage, at the same time, points out the evil, and suggests the remedy," of a Confederative Republic.

(e) "Provide for the common defense." This requires but a word. This was one of the prominent purposes of the Articles of Confederation. Congress had power given to it, with money and men, to accomplish the object, but it had neither means to raise money or men, except through a dependent requisition on the States. The Constitution was ordained to "provide for the common defense" � that is, the defense of each and all of the States, � to protect each State against invasion,¹ and it gave independent power to the United States to raise revenue and to raise and support armies. As already shown, this was an element in the more perfect union which the Constitution formed. The common defense, or the defense of each, was thus assured by the combined power of all, instead of resting upon the power of any one if disunited from the others.²

(f) "Promote the general welfare." The authors of the Federalist have very well shown that the general welfare of all the States is promoted by the comparative inexpensiveness of a common government for those concerns of each in which each is involved. Foreign intercourse through a single government acting for all, instead of each government acting in these respects for itself alone, would better promote the general welfare. The word "general" excludes the idea that the Constitution was ordained to promote the welfare of each, and therefore the common welfare of all. The general welfare relates only to those influences which belong to the welfare of all taken as a whole, and excludes those tilings which belong to each taken separately. This obviously relates to the regulation of commerce with foreign nations, and of interstate commerce; to a uniform coinage of money, to the postal system, to uniform naturalization and bankruptcy, copyright, patents, to treaties with foreign nations. In all of these, each State has merged its separate function, through its own distinct government, into a general function, through a common agent, and the gen-

eral government of all. It is very obvious that, in reference to all these matters, each State in separate action would be the rival of every other, and in the conflicting rivalries of all, the injury, if not ruin, of the welfare of all would be inevitable. But the constitution of a general agent to act for each and all suppresses injurious rivalry and invites a common policy, which permits the promotion of the general welfare of all the States. Without dwelling further upon this, reference may be had to the Federalist.¹

(g) "To secure the blessings of liberty to ourselves and our posterity." Several points may be suggested under this head.

(1) The division of the powers of government between two distinct (and rival) systems of government prevents the centralization of power, which is so fatal to liberty; and especially is this the case where the two systems of government will be disposed to watch each other, lest usurpation will disturb the balance of power between them.

(2) In separation, the States of America would, like the States of Europe, be compelled to keep large standing armies for protection against their neighbors; but such an army may, by an ambitious ruler, be converted from a shield against foreign invasion into a sword for the destruction of liberty.²Standing armies have always been perils to liberty. The union avoids the need of such for interstate defense, and with our isolation from powerful foreign nations, there is no need of a standing army for protection against foreign foes.

(3) The preservation of the integrity of the State governments avoids jealousy of Federal usurpation against the liberties of the people on the part of the States. The power of commanding the militia force in defense of liberty on the one hand, and the guarantee by the United States of a republican form of government to each State against usurpers

¹ Federalist, Nos. XII, XIII, XIV, XXVII; Story on the Constitution, §§ 496, 505.

in the State itself on the other hand, present two powerful forces in antagonism, which may be used by the people for the defense of their liberties against assaults upon them from other States.¹

(4) The distribution of power between the departments of the Federal government under the strict limitations which the Constitution fixes for the exercise of Federal power, fully conserved by the judicial power to protect the Constitution against violation by either of the other departments, with the strict limitations of Federal and State power in matters which concern the liberty of the citizen, make this declared object named in the preamble a very fitting close to its statement of the general scope of the Constitution ordained by the people.²

§ 188. The separation and independence of the Legislative, Executive and Judicial departments present for consideration the essential importance of such a structure of government. Baron de Montesquieu in his remarkable work, "The Spirit of Laws," laid down certain propositions on this subject, which had great weight with the revolutionary fathers in the construction of their various bills of rights and State Constitutions, as well as the Constitution of the United States.

So great was the influence of this author that a distinguished writer has declared that "neither the institution of a supreme court, nor the entire structure of the Constitution of the United States, were the least likely to occur to anybody's mind before the publication of the 'Spirit of Laws.'"³

Without assenting to this statement in all of its breadth, it is unquestionable that this work of Montesquieu, pub-

lished in 1748, had a great influence upon the structure of our constitutional system. He was a great admirer of the English government, and his principles were adopted largely in view of its constitutional system. The whole passage bearing upon this point is here inserted.

"In every government there are three sorts of power: the legislative; the executive, in respect to things dependent on the law of nations; and the executive, in regard to matters that depend on the civil law. By virtue of the first the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security and provides against invasions. By the third, he punishes criminals or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the State.... When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control : for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers � that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."^l

The influence of Montesquieu's maxim upon the Federal Constitution is not left to conjecture. Mr. Madison discusses this subject at length in the Federalist,² and vindicates

the Federal Constitution against any material violation of the maxim. To see how far the Federal Constitution conforms to Montesquieu's maxim, a few observations will be proper.

1st. The separation of the three departments, and of the powers to be exercised by each, is clearly defined in Articles I, II and III of the Constitution.

2d. "No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time." This prevents the appointment by the executive to any civil office of any legislator, who, as such, has created the office or increased its emoluments.¹

3d. "And no person holding any office under the United States, shall be a member of either House during his continuance in office."² This excludes all civil officers (including President and judge) from being members of either branch of Congress.

In certain other respects Montesquieu's maxim has not been observed in the Constitution. Thus, the House of Representatives has the sole power of impeachment.³ And the Senate shall have the sole power to try all impeachments.⁴Again, the executive has a qualified veto upon every bill passed by both Houses of Congress; and the President, with the consent of the Senate, has the power of appointing all the judges.⁵

While the provision already cited⁶ excludes all judicial and executive officers of the United States from being members of Congress, there is nowhere in the Constitution any provision which excludes a judicial officer from being President, Vice-President, cabinet minister or ambassador, or other of-

ficer; hence it happened that Mr. Jay was, while holding the position of Chief Justice, Secretary of State also, and was appointed Minister to England, where he negotiated the celebrated treaty which bears his name. Chief Justice Ellsworth was Minister to France while holding his judicial position; and Chief Justice Marshall, whose commission was dated January 31, 1801, and who presided in the Supreme Court during the next month, retained his place as Secretary of State during the latter period, discharging the duties of both offices at the same time.

This union of the judicial with the executive functions was casus omissus in the deliberations upon the Constitution, and is a clear departure, and in an important respect, from Montesquieu's maxim.¹

§ 189. Article I, section 1. "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

(a) This is the exclusive investment of all legislative powers in Congress. No such powers granted in the Constitution can be exercised by any other than Congress.

(b) There is vested in Congress all legislative powers herein granted; such powers are imperatively limited to Congress. Considering this clause with the tenth article of Amendments, that the powers not delegated to the United States by the Constitution are reserved to the States respectively, or to the people, we are led to this proposition: affirmatively, all legislative powers granted or delegated are vested in Congress; and negatively, all legislative powers not granted or delegated are reserved to the States or the people, and are therefore not vested in Congress; so that no powers are vested in Congress but those delegated by the Constitution, and therefore granted.

(c) This clearly excludes all idea of powers inherent in Congress, or any others than those delegated by the Constitution.

(d) Congress shall consist of a Senate and House of Representatives. The history of the struggle in the Federal convention, by which a bi-cameral Congress was organized in the manner fixed by the Constitution, has been fully stated and need not be repeated. And so much has been said in favor of the bi-cameral over the uni-cameral legislative body in a former part of this work on the general principles of government and of its importance in the Constitution of our Federal system, that we may dismiss this clause without further comment.¹

§ 190. "The House of Representatives shall be composed of members chosen every second year." Any representative popular government must be fairly responsible to the people. In the early history of the House of Commons that House sat every year, but were not elected every year; then it was elected every third year and now every seventh year, unless sooner dissolved. The period for these successive elections might be extended or contracted indefinitely. The Constitution deemed biennial elections a fair medium. The term ought not to be so long as to create in the representative a sense of irresponsibility to popular will; nor, on the other hand, so short as to subject the deliberate action of the representative to popular caprice and destroy in him the independence of sober deliberation so essential to the wisdom of legislative action. Besides, the extent of the country, the grave and important problems to be submitted to the legislature of a union consisting of so many States, would induce the lengthening of the period of service to a point which would not destroy the sense of responsibility. Two years would accomplish both of these results. It would give to the representative a particular sense of responsibility and time for study of the subject upon which he is to act.²

States." The people of each State constitute the elective body for the representative.

(c) Who shall vote? "The electors (voters) in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature." As the representatives are, as we have shown,¹ representatives of the States according to their respective numbers, and are to be elected by the people of the several States, it is obvious that the people of the State should designate the voters who should voice its will. It was therefore out of the question that the Constitution should fix the right of suffrage for these elections, and a fortiori that Congress should have the power to do so, and hence the right of suffrage was accorded to those whom the Constitution of the State, for the time being, qualified to vote for the most numerous branch of the State legislature. As the qualification of suffrage for the two branches of the legislature of many of the States at that time was different, that for the most numerous branch being the most liberal, it was agreed by the States ratifying the Constitution, that the Constitution of each State, in designating voters for the most numerous branch of its own legislature, should designate the same for the most numerous and popular branch of Congress. The exclusive power in fixing suffrage for the House of Representatives is in the State, and the other States as parties to the Constitution agreed that the action of the State as to its own government should be the rule for the Federal Congress.²

§ 191. Article I, section 2, clause 2. Who may be elected a representative?

(b) And have been seven years a citizen of the United States. This would make each native citizen of a State eligible, and every alien who had been a naturalized citizen for seven years.

icile of the person in the State which chooses him was to exclude all who, by non-inhabitancy, might secure an election, when, by reason of no community of interest with the constituency, he would be unfit to represent it.

(d) The question has been mooted whether the State legislatures can prescribe qualifications other than those contained in the Constitution of the United States. Clearly not. The Constitution intended that the representatives of all the States � a question in which all were interested � should be equal, and for any one to disturb the equality so established would be contrary to the rights of the others, besides admitting that the people of the State might make such a change. The power of the State legislature to do so is neither recognized by grant or by reservation, nor can the Congress or the House change these qualifications. To the latter no such power was delegated, and the assumption of it would be dangerous as invading a right which belonged to the constituent body and not to the body of which the representative of such constituency was a member. Nor could it be claimed as reserved to the people of the State, for the structure of the House was a matter of compact between the States, in respect to which no State could have had any pre-existing power, and therefore none could be reserved to it.¹

§ 192. Article I, section 2, clause 3. "Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons."

(a) This clause has been already considered.² There had been in the discussion of the Articles of Confederation in the Continental Congress a question raised whether the quota of contribution of each State to the common treasury

value of land. Land value was adopted as the basis in the eighth of those Articles. Congress had proposed, April 18, 1783, to change the Articles so as to base the quotas of the States on all the free population of each, and three-fifths of the slaves, but this proposition was never adopted.¹ This basis for representation and for direct taxes was reported by the committee of detail, August 6, 1787, to the convention.² Enough has been said on this subject in stating how this compromise was adopted in reference to representation and taxation.³ Three-fifths of the slaves were counted for representation as well as for the quota of direct taxation.

(b) "The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years." This provision for a decennial census was to change the ratio of representation and taxation according to the changes in population in the several States.

(c) "The number of representatives shall not exceed one for every thirty thousand, but each State shall have at least one representative." This limitation as to the constituency for a representative was to prevent the House from becoming too numerous. This clause was very much opposed for fear the House would be too small to be a fair representative of popular sentiment; but the answer to this was that, with the groat increase of population which all anticipated, a full representation of the popular will, based upon the idea of even as small a constituency as 30,000, would be too numerous to make it a deliberative body. On that basis the House of Representatives, at present, would have over 2,000 members, to which the language of Mr. Madison would be applicable: "Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob."⁴

180,000 is too small a representation to be adequate to such a constituency, the answer is that the genius of our Constitution, which gives to such representative no jurisdiction over the concerns of the other constituency which do not relate to the common defense and general welfare of the great territorial empire, if strictly adhered to, will save the rights of the constituency from wrong doing by the representative.¹ It is especially noteworthy that, irrespective of population, each State must have at least one representative. This saved to the State, however small, its voice in the House as due to its statehood and despite its numbers.

(d) "And until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight," etc., etc.

The effect of this basis of representation upon the relative weight of the Northern and Southern States is a matter of historic interest. Taking the first census of 1790, it will be found that the seven Northern States � New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey and Pennsylvania � had 1,882,615 inhabitants. The six Southern States � Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia � had a population of 1,901,174. If population, free and slave, therefore had been counted as the basis for representation, the six Southern States would have had a majority in the House of Representatives; but the number of slaves was 697,681, and two-fifths of these were lost in the ratio of representation. But the Northern States had slaves as well as the South. The South lost from the deduction of two-fifths of slaves 202,930, which deducted from the total population above given left her representative population at 1,698,244. The North lost from the deduction of two-fifths of her slaves 15,579, which deducted from the total Northern population above given left her a representative population of 1,867,036.

The actual representation of the Northern and Southern States prior to the census was arbitrarily fixed, so that the

North had thirty-five and the South thirty representatives. The North had more than its due proportion.

(e) Under clause (a) of this section we note that it gives to each State its representation based on relative numbers.

A practical difficulty has arisen in the interpretation of this clause. Direct taxes may be strictly apportioned according to the census returns of the population of each State, but it is obviously not so in reference to representation; for no matter what number be adopted as the ratio of representation, that will not be a common divisor to the numbers in each State without leaving a remainder. Accordingly, the first bill for apportionment representation that passed was vetoed by President Washington; the reasons for and against it are stated by Judge Story.¹ This question has been discussed at every re-apportionment upon a recurring census, and is a question which depends so much on all the circumstances of the case that a further reference to it would be unimportant. The reports of the committees of the two Houses of Congress in the later censuses may be referred to for the practical difficulties which have arisen, and the approximate methods adopted for their solution.

§ 103. Article I, section 2, clause 4. "When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of election to fill such vacancies. � The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment."

There was not much debate on this provision, but its language is important. The vacancies spoken of are "in the

representation from any State." This confirms the view that the members of the House of Representatives are representatives of the several States; accordingly it was natural and proper that when the representation from the State was in-

¹ Story on the Constitution, secs. 675-81, citing 4 Jefferson's Correspondence, 466; 5 Marshall's Washington, ch. 5, p. 324, and note; Mr.

Jefferson's opinion and Mr. Webster's report in 1832; Story on the Constitution, sec. 681, and note 2.

complete by reason of a vacancy, the authority of the State should be exercised to supply the deficiency; and as the legislature of the State would not always be in session, the executive power of the State was selected as that which should issue writs for new elections to supply the vacancy.¹

In Great Britain the House of Commons elect their own speaker, subject to the approval of the crown; although, at present, this approval of the crown is more formal than real, yet the Federal Constitution gave the exclusive power to the House without any reference to the executive. The provision for the House of Commons was due to the prerogative of the crown, which demanded that the organ of the House of Commons should be agreeable to the king.² But no such prerogative belongs to the President elected to the executive department of the Federal government, and an approval by him would give an intrusive influence to the executive department in the conduct of the business of the House utterly inconsistent with the whole character of the system. The autonomy of the House could only be effectual where the selection of its speaker and other officers was exclusively vested in the House.

The House has the sole power of impeachment. An impeachment is a presentment, or indictment, by the House of any officer of the government for official crimes and misdemeanors; and as there is no limitation in the grant as to the number of the members of the House who shall concur in impeachment, it results that the impeachment may be made by the House � that is, by a majority of those voting upon the question. This power to impeach is simply the power to accuse, and is different from the jurisdiction to try, which, as we shall see hereafter, is a function reposed in the Senate.³This power of impeachment subjects all the officers of the government to the investigation of the representatives of the people of the States, and qualifies the otherwise independent

³ Story on the Constitution, secs. 685, 686; Rawle on the Constitution, ch. 22; 2 Woodeson's Lectures, 40.

tenure of their offices, by subjecting them to impeachment for high crimes and misdemeanors.¹

§ 194. Article I, 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."

(a) In this body, as we have shown previously, the equipollency of the States is secured as a part of the compromise made in the convention between the large and small States, �

(b) We have seen how the diverse constitutions of the two Houses requiring a concurrent majority of the representatives of the States selected in the one House according to numbers, and in the other according to equipollency of statehood, thus became an important and a most valuable check upon partial and selfish legislation, as well as upon hostile and inconsiderate action. The structure of Congress, composed of two houses upon diverse bases of constituent strength, is a splendid example of the wisdom of the framers of the Constitution in obstructing inconsiderate, partial and unjust legislation.

(c) The mode of appointment of the senators was intended not only to connect this branch of the government of the United States directly with the legislative branch of the government of the States, but to secure the integrity of

the governmental organism of the States against hostile action by the government of the United States, by making the legislature of each State a constituency of the Senate of the United States. It secured forever the indestructibility of the governments of the States, by making the existence of the government of the United States dependent upon the continued existence of the legislatures of the States. If the Federal Samson should attempt to pull down the legislative system it would involve in a common ruin Samson himself; so that the existence of the Federal government was itself a guarantee of the perpetuity of the State governments.³

may be composed shall elect the senator by joint ballot, or shall elect him by the concurrence of the two separate branches, is not determined by the language of the Constitution. Ordinarily in practice it has been made by the joint ballot of the two houses. Whether this be within the meaning of a subsequent clause of the Constitution prescribing the manner of holding elections of senators, we will consider hereafter.¹

(e) The number of senators from each State was intended to be small in order to make it more select and better fitted for quiet deliberation. In 1803 Judge Tucker estimated that the Senate would never exceed fifty in number.² This was after the acquisition of Louisiana, which included the five Northwestern States. To have allowed a State less than two representatives would have involved the probability, from the temporary absence of the one senator, of the want of any representation of some one State at an important crisis. Two were therefore given to each State to secure its presence by at least one senator in most cases, and not more than two in any event, to prevent the body becoming too large. The number three was rejected by a vote of nine States against one, and two was inserted by a vote of nine States against one.³ Our later experience will justify the

(f) The term for senators was obviously enlarged in order to give to the Senate a longer period of experience in the discharge of its important functions, and a longer term of irresponsibility to the popular will in order to ensure independence of popular caprice. Six years was adopted as a compromise between the extreme view of Mr. Hamilton, which favored a tenure during good behavior (in effect, for life), and as short a term as three years.⁴ Seven years was

^l Post, Const. U. S., Art. I, sec. 4; Rawle on the Constitution, 37; Kent's Comm., Lecture II. [The consideration of this section (Art. I, § 4) was temporarily omitted by the author when it was reached, and owing to his death was never con-

that which ultimately prevailed, but was abandoned for the present plan of a term for six years, with the addition that one-third should go out biennially.

The plan finally adopted was a compromise by which, while each senator was not made responsive by requiring a new election except at the end of six years, yet the influence of a change in public sentiment and the infusion into the Senate as a whole of a changed public sentiment was secured by requiring one-third of the senators to be elected every three years. The jealousy of a legislative body elected in all its membership for a fixed term of six years, due to its being non-responsive to popular sentiment during all that period, was allayed by making one-third of the senators subject to a new election at the end of every two years; and thus the constitution of the body united the two objects in view in constructing such a representative body as to make it independently deliberative, and yet not wholly irresponsive to public opinion.¹ The length of the term insured a larger knowledge to the senator by experience in the discharge of his duties, while the responsibility of one-third of their number to the popular will made it largely responsive in its action to the popular influence.²

The potential reason for the length of the term of the senators is the function devolved on that body in respect to treaties with foreign powers. This function requires time and experience to enable him who discharges it properly to do so. An ephemeral body would not be well adapted to this; length of service was deemed essential to it.³ The term of service of representative and senator, therefore, taken together may be regarded as a wise discrimination. The House of Representatives is sensitively responsible to public opinion by reason of its short term of two years. The Senate is intended to be less sensitive to the rapidly changing sentiments of the people, but sufficiently so to check, by greater deliberation, the action of the House, and making

both bodies, by the requirement of concurrence in order to action, a true or conservative reflex of the popular will.

The modification of the term of service, to which we have referred, is found in the second clause of section 3. This provides that, upon the first assembling of the Senate, "they shall be divided as equally as may be into three classes;" the term of the senators of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, "so that one-third may be chosen every second year." This division was made at the first session of Congress in the following manner:

"The senators present were divided into three classes by name, the first consisting of six persons, the second of seven, and the third of six. Three papers of an equal size, numbered one, two and three, were, by the secretary, rolled up and put in a box and drawn by a committee of three persons, chosen for the purpose in behalf of the respective classes in which each of them was placed; and the classes were to vacate their seats in the Senate according to the order of the numbers drawn for them, beginning with number one. It was also provided that, when senators should take their seats from States which had not then appointed senators, they should be placed by lot in the foregoing classes, but in such a manner as should keep the classes as nearly equal as possible. In arranging the original classes care was taken that both senators from the same State should not be in the same class, so that there never should be a vacancy, at the same time, of the seats of both senators."¹

(h) The clause then proceeds: "If vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." In Lanman's Case the Senate decided that the executive could not appoint one to fill a vacancy which had not already occurred, and the executive was

¹ Story on the Constitution, sec. 724; Journal of the Senate, May 15, 1789, pp. 25, 26.

to wait the expiration of the term of the incumbent before he could do so.¹ It will be perceived that the power of the State executive to appoint, only exists when the legislature is not in session, and the term of the appointee only continues until the next meeting of the legislature. The phrase "until the next meeting of the legislature" has been construed to mean that such appointee shall hold, not up to the first or any other day of the session, but during the whole period to the time when the legislature fills the vacancy, or if it does not, until the close of the session during which it could do so. If the legislature adjourns without electing, the temporary appointment ceases and the power of the executive to make one is at an end.² A question has arisen, whether if the legislature fails, for any reason, to elect a senator and adjourns without doing so, the executive has power to fill it. Is it a vacancy which happens during the recess of the legislature of the State? Did not the Constitution, by using the word "resignation" in connection with the words "or otherwise," contemplate an incumbency which ceases by resignation, death or some other circumstance, or did it contemplate a vacancy in the office resulting from the legislature never having chosen persons to fill it? The better opinion would seem to be, that where the term has never been filled it is a vacancy in the

office by non-exercise of the elective function by the legislature, which function the executive is not competent to perform. The executive power is only called into exercise where the legislature, by reason of the happening of the vacancy, has had no opportunity to exercise its original function of electing. This executive power is never to be exercised where the legislature has had the opportunity to elect, but declines to do so. There may be reasons why it should so decline, and if so, it would be out of place for the executive to elect, where the legislature has deliberately declined to exercise the power.

¹ Cushing's Law and Practice, sec. 494; Senate Report, 2d Sess. 55th Cong., on Corbett's case, and precedents there cited.

§ 185. Article I, section 3, clause 3. "No person shall be a senator who shall not have attained 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."

(a) The qualification of age for senators is five years more than for representatives, and two years more for citizenship. This indicated the constitutional purpose to require larger experience and a longer period after naturalization of foreign-born citizens than in the case of representatives. The relations of the Senate to the treaty-making power and to appointments for offices, and to the judicial trial of impeachments, made the framers of the Constitution require greater maturity for the members of the Senate than for the members of the House.¹

(b) The clause as to the inhabitancy of the State for which the senator is chosen grew out of the necessity of the representative being in accord and sympathy with the interests of his constituents. "The only surprise is that provision was not made for his ceasing to represent the State in the Senate as soon as he should cease to be an inhabitant."² The reason for this may have been the difficulty of determining what would be necessary to constitute such a change, and the tribunal that should decide it.

(c) The question of the mode of election of senators has been the subject of consideration in Congress within the last few years, and an amendment has been offered for several sessions in the House of Representatives, and has passed that House by the requisite two-thirds vote, for electing the senators by the popular vote of the suffragans of the State. The reasons for and against this proposition will be found in the Congressional debates upon the proposition.³ It is hardly proper in a work devoted to consideration of the Constitution as it is, to discuss the propriety of proposed amendments

¹ Federalist, No. LXII; Rawle on the Constitution, 37; 1 Tucker's Blackstone, Appen.. 223; Story on the Constitution, secs. 720-28.

until they shall have been finally acted upon. But it may be remarked that the proposition indicates a drift of public sentiment in favor of a direct relation of the senator to the people of the State, rather than to the legislative organism of the State; for often a majority of voters in the State would select a senator different from the one a majority of the legislature might choose. Whether the relation of the governmental organism of a State to the Senate as a branch of the Federal legislature � to which importance is attributed by some � is a question of grave import, may well be doubted.

§ 196. Article I, section 3, clause 4. "The Vice-President of the United States shall be president of the Senate, but shall have no vote unless they be equally divided."

(a) In the convention of 1787 the question as to the presiding officer of the Senate was debated. At first the Senate was authorized to choose its own president, as in the case of the House of Representatives, and this was at one time during the convention adopted, together with the provision that the president of the Senate, in case of the removal, death, resignation or disability of the President of the United States, should discharge the duties of the President.¹ Subsequently the office of Vice-President was determined on, and by a decided vote of eight States to two he was made the presiding officer of the Senate.² Objections were afterwards made in some of the State conventions to the selection of an officer not elected as senator to preside over the deliberations of the Senate and to cast a potential vote upon any measure where there was a tie in the Senate, but it prevailed by the ratification of all the States.³

proposing an amendment to the Constitution on this subject recommended in said report passed the House of Representatives July 12, 1892, and identically the same resolution passed the House on the 20th of July, 1894. A similar joint resolution was passed through the

³ 2 Elliott's Debates, 359, 361; 3 Id. 37, 38; 1 Tucker's Blackstone, 199, 200, 224; Story on the Constitution, secs. 733-38.

President's power came in question during the Presidency of John Quincy Adams � Vice-President Calhoun holding that he could not of his own motion call any member to order unless, by the rules of the Senate, he was authorized to do so. This view was opposed by the President himself, as was supposed, over the signature of Patrick Henry, Mr. Calhoun writing over the signature of Onslow.¹ The Senate made a rule in 1828 that every question of order should be decided by the president, without debate, subject to appeal to the Senate.²

§ 197. Article I, section 3, clause 5. "The Senate shall choose their other officers" (as to which comment is unnecessary), "and also a president pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States."

(a) It has become a practice for the Vice-President to vacate his seat a short time before the end of the session, in order that the Senate may choose a president pro tempore, who would thus be in office to preside at the next session if the Vice-President, in the recess, should be called to the Presidency.³

(b) It may be well to note that the clause seems to indicate that the Vice-President fills the office of President in case of his death, and does not merely discharge the duties of the office, and that whether present or absent the president pro tempore will preside when the Vice-President becomes President. The structure of the sentence would indicate this construction, which is the more rational, because otherwise the President of the United States, by reason of having been elected Vice-President, might take part in the deliberations of a branch of the Congress; and this construction is more clearly established when the Vice-President alone can preside over the Senate, since by becoming President he will cease to be Vice-President.

§ 108. Article I, section 3, clause 6. "The Senate shall have the sole power to try all impeachments."

(a) We have seen that the sole power of impeachment is vested in the House of Representatives. The accusing power is in the House; the judicial power is in the Senate. The discussion of the question of the propriety of vesting this power in the Senate may be found in the Federalist,¹ and in the works of other commentators on the Constitution.²

(b) In the convention, the question of giving the trial of impeachments to the Supreme Court was fully considered. The reasons for not vesting it in the Supreme Court are stilted in the Federalist,³ and the answer to it by a Virginia commentator.⁴ Judge Story maintains the propriety of not vesting this power in the Supreme Court quite elaborately.⁵Mr. Rawle, in his work on the Constitution, sanctions the

proposed grant of this power to the Senate as eminently wise. Since the publication of the works of the eminent authorities referred to, there have been some trials for impeachment that excited great interest. These were the trial of President Johnson in 1868, which resulted in his acquittal by the lack of one vote to make two-thirds of the senators present, and the trial of Secretary Belknap, which resulted in acquittal, chiefly, perhaps, because by the acceptance of his resignation he was withdrawn from the reach of the penalty which the Constitution inflicted in case of conviction. No doubt many of the senators believed that by that resignation he ceased to be an officer of the United States, and therefore ceased to be amenable to the jurisdiction of the court trying the impeachment.

(c) In reviewing, therefore, the history of the country, we may perhaps conclude, with Judge Story and others, that if the Senate be not the best tribunal for the trial of impeach-

² 1 Tucker's Blackstone, Appen., 200, 335-37, 346; Story on the Constitution, secs. 741-53.

ment, history has not furnished proof that any other tribunal would have been better, or even as good.

(d) The next subject for consideration is the residue of this clause. "When sitting for that purpose, they shall be on oath or affirmation." This adds to the assurance of impartiality in the trial resulting from the character of those who are to sit upon it, the sanction of an oath, in addition to their general oath, to do justice in the particular case submitted to their decision. It might well have been supposed that this would be as solemn an appeal to the conscience of the triers as it is felt to be by every jury sworn to try a particular case.

(e) And further: "When the President of the United States is tried, the Chief Justice shall preside." Upon this sentence it may be remarked that it is the only place in the Constitution where there is any reference to the office of Chief Justice. The reason why the Chief Justice should preside on such trial is. negatively, that it excludes the Vice-President from doing so, who would be interested in the conviction of the accused, in order that he might succeed to the office, and perhaps it was supposed that it would add dignity and influence to the tribunal that it was presided over by the chief judicial magistrate of the United States.

(f) And further: "and no person shall be convicted without the concurrence of two-thirds of the members present." This places a great restriction upon the power of conviction. To give the power to a mere majority might make the fate of the accused depend upon the temporary partisan majority of the two Houses of Congress; the majority in the one House accusing, and the majority in the other House convicting. A majority of the one House to accuse, and two-thirds of the other House to convict, would make it, under ordinary conditions, impossible to convict a party accused, unless there was clear ground that appealed to public justice rather than to partisan passion. But "two-thirds of the members present," not two-thirds of all the members of the Senate, but two-thirds of those who shall be present at the time of trial, must concur in order to secure conviction.

(g) Upon the trial of President Johnson, a state of things occurred which illustrates this point very strongly. The majority against the President upon the articles of impeachment in both Houses was overwhelming, and, if a majority could have convicted in the Senate, he would have been condemned. But the requirement of two-thirds operated to acquit him, only one vote of the two-thirds being lacking. This protected him from conviction by reason of strong partisan feeling against him, because a two-thirds vote could not be obtained for that purpose.

(h) It does not appear that the Chief Justice or the Vice-President, when the Senate is sitting on a trial of impeachment, has any other function than to preside. The Vice-President or the Chief Justice might vote upon an incidental question if the Senate was equally divided, but upon the final judgment of acquittal or conviction there could be no equal division, and therefore no place for any such vote by the presiding officer.

§ 199. Article I, section 3, clause 7. "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."

(a) By section 4 of article II of the Constitution it is provided: "The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." These two provisions indicate that the jurisdiction for impeachment only extends to an officer of the United States. In Belknap's case this was held to exclude the jurisdiction against the accused where he had resigned from office, although it was held by many that, as he was an officer at the time of the offense committed, he was still subject to impeachment, because the judgment in case of impeachment might not only be for removal from office, but disqualification to hold and enjoy any office under the United States. The decision was against the jurisdiction.

(b) We must note further, that impeachment can be made only of the "President, Vice-President and civil officers of the United States."

(c) It is further implied that the constitutional officers, the President and Vice-President, and all civil officers, may be impeached for treason, bribery, or other high crimes and misdemeanors.

(d) The first part of the clause authorizes judgment to remove the accused from office, and a judgment of disqualification to hold and enjoy any office of honor, trust or profit under the United States, but no further. The latter part of the clause provides that the party, though convicted and judgment rendered, as just stated, shall be liable and subject to indictment, trial, judgment, and punishment according to law, that is, in the ordinary tribunals of justice. This subjects the accused to the punishment for treason, bribery, etc., by the ordinary courts of justice, despite his conviction and judgment by the Senate under this clause. The officer shall not escape the punishment of the ordinary citizen for the crime of which he is accused by reason of the mere sentence of removal from office and the other disqualifications, under judgment of the Senate in the impeachment trial.

(e) But suppose the accused be acquitted by the Senate, will he be exempt from trial by the ordinary courts of justice? Despite the suggestion of Judge Story,¹ as the Senate has no right to punish the officer impeached, except by removal from office and other disabilities, and as he has never been tried for the offense committed by him as a man, but only for breach of official duty, it would seem that he could not plead autrefois acquit, if acquitted by the Senate, to an indictment in the ordinary courts of justice. He has been acquitted as an officer, but not as a man, and therefore may be tried as a man by the common courts of justice, though not again tried as an officer.

against the accused as an officer of the government, to protect the government from the present or future incumbency of a man whose conduct has proved him unworthy to fill it. But as a man, he is responsible for treason, bribery, and other crimes, though he may have been acquitted as an officer.

(g) In England the judgment in case of impeachment extended not merely to a punishment of the officer, but to the punishment of the man. Our Constitution forbids the Senate to inflict any punishment except upon the officer, and it can inflict none upon the man; but that cannot exempt the man from the punishment which the Senate cannot inflict, but which the ordinary courts of justice can alone impose.¹If the Senate could by judgment of impeachment punish the man as well as the officer, it would probably be held that an acquittal by the Senate might be pleaded by the accused as a complete defense to a proceeding in the ordinary courts of justice; and as the Constitution provides: "But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law,"²that is, if convicted by the Senate he may still be tried by the common courts of justice for his crime as a man, it would seem to be an unreasonable construction of the Constitution to suppose that his acquittal by the Senate would work exemption of the prosecution in the common courts of justice, when his conviction would not do so.

(h) Who are subject to impeachment? Clearly, the President and Vice-President, who are constitutional officers of the United States, elected mediately by the people of the States through the electoral colleges; and civil officers in contradistinction to military officers, who are subject to trial and punishment according to the military code. Therefore, all civil officers of the United States are liable to impeachment.

¹ Story on the Constitution, secs. 781, 782; Rawle on the Constitution, ch. 22.

tutional sense, the President and Vice-President are not civil officers of the United States, for otherwise the language would have been "and other civil officers."

(j) This question arose in Blount's case, in which the Senate decided that a senator was not impeachable as a civil officer of the United States. This decision was made on the 10th of January, 1709, by a vote of fourteen to eleven.¹The correctness of this decision is obvious from a few considerations.

(k) The subjects of impeachment are the President, Vice-President and all civil officers of the United States.² By expressly naming the President and Vice-President, it appears that they are not within the meaning of the term "civil officers,'' and this is emphasized by the omission of the word "other" before the words "civil officers," which would naturally have been used if the Constitution regarded the President and Vice-President as embraced in these terms. The President and Vice-President are constitutional officers. Who, then, were included in the terms "civil officers?" The meaning of these words is interpreted by the last clause of section 3 of article II, which just precedes the use of the term "civil officers" as subject to impeachment. It explicitly declares that the President "shall commission all the

officers of the United States," and these are the officers who, under article II, section 2, clause 2, are to be appointed by the President, by and with the advice and consent of the Senate, under the words "ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States," etc. These great and important offices, including judges, are embraced within the terms "officers of the United States," and the more clearly so by the use of the word "other" before the words "officers of the United States" � a word omitted before the words "civil officers" in the section with respect to impeachments.

¹ Senate Journal of that date; Story on the Constitution, sec. 791; 4 Tucker's Blackstone, Appen., 57,

58; Rawle on the Constitution, ch. 22; Federalist, No. LXVI. ² Const. U. S., Art II, sec. 4.

(l) The collation of these several clauses and others in the Constitution clearly indicates that the Constitution, in the use of the term "civil officers," intended to embrace merely those who were commissioned as such under the appointing power named in section 2 of article II of the Constitution. Nowhere in the Constitution is a senator or representative spoken of as an officer of the United States, or even as an officer at all, and in article 1, section 6, clause 2, of the Constitution, the distinction between a senator or representative and a civil officer of the United States is very clearly made.¹

(m) Besides, the mentioning of President and Vice-President with all civil officers of the United States, and the omission of senators and representatives, leads to the conclusion that the senators and representatives were excluded from those who were amenable to impeachment. Senators and representatives are not commissioned by the President, and yet the President is required to commission all the officers of the United States; nor are they appointed by the President with the consent of the Senate, though the President is required to appoint all judges "and all other officers of the United States." It is obvious, therefore, that the impeachment power was intended to enforce the responsibility of those who held commissions under the United States government, and not of those who held their offices or their positions by virtue of the elective power of the people of the States. The naming of President and Vice-President, and the non-naming of senators and representatives, shows that only civil officers appointed and commissioned by the President were amenable to impeachment, except those expressly named, President and Vice-President, and senators and representatives coming under neither of these, and not expressly included, were excluded from the impeaching power.

(n) The judgment of impeachment was to remove from office and to disqualify from holding office under the United States the officer convicted, and to disqualify him from holding any office under the United States. These terms prop-

erly limit the jurisdiction of the tribunal to try impeachments to those who hold offices under the United States. A senator or representative does not hold office under the United States. The one is elected by the State legislature, the other by the people of the State. His authority is in nowise derived from the United States. He is responsible to the power that gave him authority, and not to the government of which he is a part and which could give him no authority. If to this it is answered that neither is the President or Vice-President appointed by the United States government, and therefore should not be impeachable, the reply is conclusive: they would not be so unless they had been expressly mentioned, and the senator and representative not being expressly mentioned is not within the reason of the impeachment power, nor within its terms.

(o) Besides, the United States may, by impeachment, debar a convict from holding office under the United States; but how anomalous it would be for an impeachment to debar a State from electing a convict to the position of senator or representative. The impeachment power was intended to cleanse the government from the presence of worthless and faithless officials, but not to debar a State from electing whom it pleases to represent it in the great council of the Union.

(p) But again, if it is asked, suppose, then, a senator or representative elected by a State is guilty of treason, bribery or other high crime, can the State force upon Congress the continued presence of men so faithless to their duty? The answer is that by article I, section 5, clause 2, each House of Congress may, with the concurrence of two-thirds, expel such unworthy member. His impeachability, therefore, is by the House of which he is a member. This power in each House is not only sufficient in the case of such a member, but is totally inconsistent with his amenability to this constitutional process of impeachment. If he be a senator and be impeachable, the House of Representatives must impeach him by a majority of its members, and the Senate, by a two-thirds vote,

convict him, which it might do under the expelling power without the accusation by the House. But if he be a representative, the House, by a bare majority, may impeach him, when two-thirds of that House are essential to expel him, and then the other body, by a two-thirds vote, is to expel a representative from the House upon an accusation by a bare majority of that House. This is sufficient to show that the power of expulsion by the House of which the senator or representative may be a member, so inconsistent with the procedure in case of impeachment, was intended to be a substitute for the ordinary procedure for impeachment of civil officers, and to exclude the latter by giving ample power to each House to expel upon a two-thirds vote. In fact, the House of Representatives, defeated in its attempt to expel a member by a lack of a two-thirds vote, but with a majority to accuse, may, by obtaining the judgment of the other House, accomplish the expulsion, which under the ordinary proceeding it would be unable to do. This seems to be too absurd to have been within the purview of the framers of the Constitution.¹

(b) Bribery, which needs no special comment. For its definition resort may be had to its meaning in Criminal Procedure.

(c) High crimes and misdemeanors. What is the meaning of these terms? Much controversy has arisen out of this question. Do these words refer only to offenses for which the party may be indicted under the authority of the United States? Do they mean offenses by the common law? Do they include offenses against the laws of the States, or do they mean offenses for which there is no indictment in the ordinary courts of justice? Or do they include mal-administration, unconstitutional action of an officer wilful or mistaken, or illegal action wilful or mistaken?

(d) Up to September 8, 1787, the clause in reference to the impeachable offenses only included treason and bribery. On that day Mr. Mason moved to add the words "or maladministration." Mr. Madison objected to the vagueness of this term, whereupon Mr. Mason withdrew the word "mal-administration," and substituted "other high crimes and misdemeanors against the United States," and the clause was then agreed to by a vote of ten States to one.¹ As the word "other" is inserted before the words "high crimes and misdemeanors," these last words may be interpreted by the nature of the crimes "treason and bribery." Why should an officer be impeached for treason? Obviously, because an officer guilty of treason against the United States would be disqualified personally from being an officer of a government to which he was a traitor. How could a President properly command an army of the United States, when he was engaged in levying war against them, or adhering to their enemies? The utter inconsistency of this double position made it a proper offense for the jurisdiction of impeachment. The same objection would apply to any other officer of the United States. To be employed in the service of the United States, against which he was levying war, or adhering to their enemies, was a total personal disqualification.

(e) So in respect to bribery. Bribery corrupts public duty. The difference between treason and bribery is that the first is a crime defined by the Constitution, as to which Congress has no power except to declare its punishment.² Bribery is not a constitutional crime, and was not made a crime against the United States by statute until April, 1790. These two cases, therefore, show that the words "high crimes and misdemeanors" cannot be confined to crimes created and defined by a statute of the United States; for if Congress had ever failed to have fixed a punishment for the constitutional crime of treason, or had failed to pass an act in reference to the crime of bribery, as it did fail for more than a year

after the Constitution went into operation, it would result that no officer would be impeachable for either crime, because Congress had failed to pass the needful statutes defining crime in the case of bribery, and prescribing the punishment in the case of treason as well as bribery. It can hardly be supposed that the Constitution intended to make impeachment for these two flagrant crimes depend upon the action of Congress. The conclusion from this would seem to be

inevitable, that treason and bribery, and other high crimes and misdemeanors, in respect to which Congress had failed to legislate, would still be within the jurisdiction of the process of impeachment.

(f) The word "mal-administration," which Mr. Mason originally proposed, and which he displaced because of its vagueness for the words "other high crimes and misdemeanors," was intended to embrace all official delinquency or mal-administration by an officer of the government where it was criminal; that is, where the act done was done with wilful purpose to violate public duty. There can be no crime in an act where it is done through inadvertence or mistake, or from misjudgment. Where it is a wilful and purposed violation of duty it is criminal.

(g) This construction is aided by the fact that judges hold their offices during "good behavior."¹ These words do not mean that a judge shall decide rightly, but that he shall decide conscientiously. He is not amenable to impeachment for a wrong decision, else when an inferior judge is reversed he would be impeachable; or, in the Supreme Court, a dissenting judge might be held impeachable because a large majority of the court affirmed the law to be otherwise. But if he decides unconscientiously, � if he decides contrary to his honest conviction from corrupt partiality, � this cannot be good behavior, and he is impeachable. Again, if the judge is drunken on the bench, this is ill-behavior, for which he is impeachable. And all of these are generically crim-

inal, or misdemeanor � for misdemeanor is a synonym for misbehavior. So, if he omits a judicial duty, as well as when he commits a violation of duty, he is guilty of crime or misdemeanor; for, says Blackstone,¹ "crime or misdemeanor is an act committed or omitted in violation of a public law either forbidding or commanding it."

To confine the impeachable offenses to those which are made crimes or misdemeanors by statute or other specific law would too much constrict the jurisdiction to meet the obvious purpose of the Constitution, which was, by impeachment, to deprive of office those who by any act of omission or commission showed clear and flagrant disqualification to hold it. On the other hand, to hold that all departures from, or failures in, duty, which were not wilful, but due to mistake, inadvertence or misjudgment, and to let in all offenses at common law, which, by the decisions of the Supreme Court, are not within Federal authority at all, would be to extend the jurisdiction by impeachment far beyond what was obviously the purpose and design of its creation. It must be criminal misbehavior � a purposed defiance of official duty � to disqualify the man from holding office, or disable him from ever after holding office, which constitute the penalty upon conviction under the impeachment process. The punishment, upon conviction, indicates the character of the crime or misdemeanor for which impeachment is constitutional. If the crime or misdemeanor for which the impeachment is made be not such as to justify the punishment inflicted, we may well conclude it was within the purpose of the Constitution in using the impeachment procedure.

The same reasoning will apply to other offices of the United States as has thus been applied to the judicial office. The power of removal in other offices than the judicial is with the executive, and, if exercised by removal, the evil of his incumbency is at an end. But if the executive should refuse to remove an officer who commits a violation of duty, or

wholly omits to discharge it; if the appointing power screens from removal one flagrantly delinquent in duty, the impeachment power is the reserved instrumentality by which the Constitution will remove the official delinquent in spite of the action of the executive in retaining him in the office which he disgraces. His flagrant misbehavior may work, through impeachment, his exclusion from office, whom a wicked executive would perpetuate in the official station he is disqualified to fill.

The history of English impeachment may be used to illustrate, and to aid in the interpretation of the jurisdiction of impeachment established by the Constitution; but wo must avoid making the English precedent the measure of the impeachment jurisdiction of the Constitution. The English doctrine was contracted, or expanded, according to the temper of the times in which the cases arose. Bills of attainder often, in times of great excitement, took the place and satisfied the demands of public vengeance. How far impeachment reached beyond ministers of the crown and those who held offices under the crown, � whether it embraced peer and commoner, � whether it could arraign and punish a private subject who was not in office or public employment, �

whether it extended beyond the subjects of criminal jurisdiction in the ordinary courts of justice, it is difficult for the ablest investigators into ancient precedents precisely to determine. Unquestionably, as Mr. Hallam asserts, the ministers of the crown were impeachable by the commons as a means of enforcing responsibility for royal misdeeds to the people, whose rights were violated by them; and this as early as the reign of Henry VII.¹

In the reign of James I., Mr. Hallam asserts, proceedings in the nature of impeachment were taken against Giles Mompesson, who was the patentee of a royal monopoly from which the king derived great pecuniary benefit, and his accomplice, Michell, for the abuse of the powers vested in

them; against a judge for corruption in his office; against a bishop for being concerned in the matter of bribery. The impeachment of Lord Bacon for corruption and bribery in office is also mentioned. All of these were for offenses arising in the discharge of their official duties. How far impeachment proceedings were recognized against private persons who were not in office does not clearly appear. Be this as it may, our Constitution, by naming no persons as subject to impeachment but public officers, and no punishment for the offenses but removal from office and disqualification from holding office, taken in connection with the fifth and sixth amendments of the Constitution, prohibits punishment of the man for a capital or otherwise infamous offense, except by presentment of indictment to a grand jury and by trial by jury, seems to exclude all persons save those who hold the offices of President, Vice-President, or other civil offices in the United States, from impeachment.

In England, where bills of attainder were allowed against private persons, impeachment might be allowed against them also; but under our Constitution the limitation would exclude all private parties, because the jurisdiction appears to be aimed at those who hold public offices, and the punishment inflicted only worked the present and permanent incapacity to hold office. Our proceeding is aimed at the officer and not the man. Trial and conviction of the man can only be by the ordinary criminal procedure in the ordinary courts. And this seems to have been the result of the impeachment cases which have arisen in our country.

Blount, in 1797, was impeached for corrupt practices, but was acquitted on the ground that he was not a civil officer. Belknap, in 1807, was discharged because he had resigned his office, and was thus no longer subject to impeachment. John Pickering, in 1803-4, was found guilty for deciding a case before him contrary to an act of Congress; for refusing to hear testimony produced by the United States with intent to defeat their just claims; for refusing to allow an appeal by the United States contrary to an act of Congress,

and wickedly meaning and intending to injure their revenues; and for acts of personal immorality committed in so public a manner as to degrade his office.

In Chase's case, 1804-5, a number of charges of official misconduct in deciding points against a prisoner contrary to law were made. The accused was acquitted, because the proof failed to establish any evil or arbitrary or oppressive design. In Judge Peck's case, 1830, the judge punished, for contempt, counsel for a party in the case who published an answer to the judge's published opinion in the case. The accused justified his act and negatived all evil intent. In Humphrey's case, the judge was impeached for treason and was convicted. In President Johnson's case, he was charged with a number of acts in violation of official duty, but was acquitted, though upon a close vote, because the acts charged were not proven to have been done contrary to his conviction of his duty, or in wilful violation of the Constitution or the laws of the United States."^l

The Constitution of the United States² gives to the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The cause of this exception will be readily perceived by recurring to the abuse of the pardon power in England, where the crown was disposed to screen a wicked favorite from the punishment resulting from a conviction of impeachment. If the officers of the crown were made responsible to the people through the impeaching power of the House of Commons, that responsibility would be of no avail if the crown could shield its favorite from his well-merited punishment. Accordingly in the act of settlement, twelfth and thirteenth of William III., it was expressly provided "that no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament."³

¹ See Pomeroy's Const. Law, secs. 715, 727; Miller on Const, of U. S., 167, 171, 201, 202, 213, 217; Wharton's Com. Amer. Law, § 399.

The framers of the Constitution of the United States no doubt took this provision of our Constitution from this clause in the act of settlement, which was the result in England of a long struggle between the Crown and the Commons. So that the pardon of the President, while it may avail the guilty party when convicted in an ordinary court of criminal jurisdiction, will not avail to shield the criminal from the judgment of amotion from office and of disqualification to hold office thereafter, which the judgment in impeachment may inflict upon it.

§ 201. We may conclude what needs to be said on this subject of impeachment with a statement of the practice of the two Houses on this subject.

The procedure may be briefly summarized. When an officer is suspected of being guilty of an impeachable offense, a member, or a committee of the House (as in the case of Belknap), reports the facts to the House with a resolution either to draw up articles of impeachment or to appoint a committee for doing so. The committee so appointed reports a statement of the charges to the House, and the House then appoints a committee to impeach the party at the bar of the Senate, and to ask that the Senate shall take order for the appearance of the party to answer the said impeachment.

The articles of impeachment are drawn under the direction of the House of Representatives, which, when approved by the House, are presented by a committee of the House to the Senate, and a committee of managers are appointed to conduct the impeachment. As soon as the articles are presented the Senate issues process against the party to appear at a given date to answer the articles. The process is served by the sergeant-at-arms of the Senate, and due return is made under oath. These articles need not be in the strict form of indictment, but must contain sufficient certainty of allegation for the defendant to avail himself of any defense he may desire to make. At the return day of the process the Senate resolves itself into a court of impeachment, and,

being solemnly sworn as the Constitution requires, the person accused is called to appear and answer the articles. If he appears in person or by attorney, his appearance is recorded and his counsel are admitted to appear and to be heard upon the impeachment. If he fails to appear either in person or by attorney, his default is recorded, and the Senate proceeds to the trial ex parte. When he appears he is entitled to demand a copy of the articles of impeachment, and is allowed time to prepare his answer.

He may plead, as in ordinary courts, to the jurisdiction: as in Blount's and Belknap's case, they not being officers of the United States. He may deny the whole charge, or may plead in confession and avoidance, and in excuse of the acts involved in the impeachment. When his answer is prepared and filed, the House of Representatives, by the managers, may make replication thereto. When these preliminaries are all settled, a day is appointed for the trial; the House of Representatives appears at the bar of the Senate, either in a body or by their managers; the accused, either in person or by his counsel, may appear, and the proceedings are then conducted under the orders of the Senate, but substantially as in ordinary judicial trials.

After the parties impeaching and the party accused are fully heard, the Senate may debate the questions involved, which is done in secret session. A day is assigned for final public decision by yeas and nays upon the several articles of impeachment. The president of the Senate, as each member named is called, addresses the senator and asks the question: "How say you; is the respondent guilty or not guilty

If upon any article two-thirds of the Senate decide that he is guilty, he is convicted upon that article. If two-thirds do not vote that he is guilty upon any one article he is acquitted. But if guilty upon any one, or all, the Senate then proceeds to fix the punishment of amotion from office and disqualification to hold office under the United States gov-

ernment, or either of these, or with such qualifications and conditions as the Senate may determine. The judgment thus pronounced is recorded and is absolute and irreversible.¹

¹ Story's Commentaries, secs. 803-809; Jefferson's Manual, sec. 53; Cushing's Law and Practice, 2535-

§ 202. The second clause of the fourth section is as follows: "The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day." This idea of an annual Congress was by analogy to the favorite practice in England of annual parliaments. This clause provides for an annual meeting on the first Monday in December, unless Congress should appoint a different day, so that the time of meeting every year was constitutionally fixed, and Congress could not change the annual meeting.²Under the British Constitution the king had the sole right to convene, prorogue and dissolve Parliament; but now Parliament assembles annually, though the king has the power to prorogue and dissolve.

Article I, section 5. The provisions of this article are in substance such as were practiced in Great Britain before the Revolution, and are usual in all legislative bodies under free governments. The first clause of this section will be considered in the order of its various provisions. The first gives to each House the right to be the judge of "the elections, returns and qualifications of its own members." In 1586 the House of Commons first asserted this right, and from the restoration of Charles the Second to 1770 the House of Commons decided upon the qualifications, elections and returns of its own members. Prior to that time the decision of these questions had rested with the king;³ but after the statute of 1406 and 1410 the returns of members of the House of Commons were in Chancery and not to the Parliament, and judges of assize

were directed by the Chancery to inquire into questions of undue returns and elections. The propriety of each House being the judge of these matters is very obvious. No power external to the House could decide them without an intrusion upon the question of its organization, which would be fatal to its freedom and independence. The right of the House, as a body, to determine upon the right of each member to a place in that body is so obvious that it needs no comment. The power of election is vested, as we have seen, in the constituency under the laws of the States; but whether that constituency have elected qualified persons, and whether the officers holding the election have made proper returns, is left to the House in order to prevent an intrusion of persons disqualified or not duly elected upon their deliberations.

The next sentence in this clause declares: "A majority of each shall constitute a quorum to do business." Under the English Constitution, in the House of Commons, consisting of about six hundred members, forty members constitute a quorum to do business; in the House of Lords, which body consists of several hundred members, three.

The origin of the word "quorum" was in the king's commission for justices of the peace, to whom powers were granted jointly and severally, with the addition of the word quorum; a certain number of those named might exercise the powers. The word was then extended to all public bodies. The necessity of some such provision is very obvious, for as all the members of such large bodies would not ordinarily be present, the designation of the number was necessary in order to make action ordinarily possible. A majority of the body constitutes a quorum, but what is a majority of the body? The Constitution declares that the House shall be composed of members chosen by the people of the several States, and the Senate of two senators from each State, chosen by the legislature thereof. Does the majority, to constitute a quorum, mean a majority of all the representatives which the several States may be authorized to elect, or of all who have been actually elected? And as

to all of those who have been actually elected, there may be some who have died or resigned or been expelled. Shall these be counted? The House of Representatives have by a series of decisions (as well as the Senate) settled that the

House is composed of members who have been chosen as representatives, and the Senate of senators, who may therefore be. present if they choose: all of these are to be counted as constituting the body, and a majority of these constitute a quorum. When, therefore, during the secession period the seceding States elected no members, the members which they might have elected were not counted in the number of those who constituted the body; and so when a member dies or resigns or has been expelled and no one has been elected to the vacancy, such members are not counted in the number necessary to constitute the body; therefore a majority of those who have been elected and may under such election take their seats in the body, and these only, are counted among the members of those who constitute the body, and a majority of these alone will constitute a quorum. The clause goes on to say, after declaring that 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 penalties as each House may provide." This gives power to a less number than the quorum to do some business, that is, to meet as a quorum for the purpose of adjourning from day to day, and for the purpose of taking such order for the attendance of absent members as the House may provide. This provision was necessary for the continuity of the body and for enforcing the attendance of absent members in order to constitute a business quorum, but not for any other purposes.¹

§ 203. The next clause is, "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds,

expel a member." This clause is essential to support the autonomy of each House, and rules for its proceedings, unless opposed to some express provision of the Constitution, may be established by each according to its pleasure. These powers are similar to those of the two Houses of the British parliament.

The disorderly behavior for which a member may be punished has been a matter of some conflict of opinion: must it be for such behavior in the House only, or for misbehavior outside of the House? Blount was expelled from the Senate for an offense inconsistent with public duty, but it was not for a statutory offense, nor was it in his official character, nor during the session of Congress, nor at the seat of government; the vote for expulsion was twenty-five to one.¹ In the case of Smith, the motion to expel was made against him for supposed conspiracy in the alleged treason of Burr; the vote was nineteen to ten, and he was not expelled, but it would seem that a large majority of the Senate thought that the accusation was proper ground for expulsion, though the act was not done in the Senate, nor by him as a senator.² Perhaps, from the language of the clause, a member may be punished for disorderly behavior on the floor, or for conduct in the House, or perhaps in the committee room, which produces disorder and disturbs the proceedings and business of the House. Such punishment, it is obvious, may be inflicted by the majority of the vote of the House. The motion to expel a member may be for disorderly behavior, or disobedience of the rules of the House, in such aggravated form as to show his unfitness longer to remain in the House; and the cases above cited, as well as the reason of the provision, would justify the expulsion of a member from the House where his treasonable and criminal misconduct would show his unfitness for the public trust and duty of a member of either House. But expulsion, which is an extreme punishment, denying to his constituency the

right to be represented by him, can only be inflicted by the concurrence of two-thirds of the House and not by a bare majority. The requirement of a two-thirds vote for expulsion was inserted as an amendment to the original provision by a vote of ten States, one other being divided. This authority to expel had existed in the House of Commons and was exercised for misconduct on the part of the member during the session of the House, and was extended to all cases where the offense clearly unfitted a member for parliamentary duties.¹

§ 204. The next clause is: "Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such 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." The provisions of this clause were matters of debate in the convention.² The importance of keeping a journal is to give publicity to the action of the House and permanence to its records; if no journal were kept, the responsibility of members to their constituents would fail, because the statement of a representative in justification of his official conduct could not be contradicted by an official record. The language is very precise and distinct. The word keep is emphatic, � it indicates that the journal, once made, cannot be destroyed or changed, else it would not be kept; and hence a rule of the House requires a journal to be read on the succeeding day, with liberty to amend or correct the action of the clerk if not accurate, by the decision of the House upon the question recently after the journal is made. This question was discussed upon the passage of resolutions by the Senate, expunging an order by the previous action of the Senate, which was disapproved by a majority of the Senate at a subsequent

^l Story's Commentaries, sec. 837; 1 Blackstone's Commentaries, secs. 163, 167; Rex v. Wilkes, 2 Wilson's Rep. 257.

period. In that case the resolution was not to expunge but to draw marks around the order objected to. The publication of the journal as provided for was much objected to in the convention, because of the qualifications and exceptions made to such publication. The words "from time to time" were regarded as too indefinite, and the exception, "such parts as may in their judgment require secrecy," was supposed to give to each House too great a power to suppress the evidence of its action to insure the responsibility of members for such action, which was intended by the requirement that each House keep a journal of its proceedings. The meaning of the exception was, that the two Houses might suppress the publication of such parts of their proceedings as in time of war or public danger would require secrecy from the public, because the secrecy of our action from public enemies was necessary to public safety. In the Senate this rule has gone further: the Senate goes into secret session upon the consideration of nominations to office made by the President, and of treaties with foreign countries. From time to time strong and vigorous protests have been made against the universality of this practice.

The latter part of the clause in reference to the call of yeas and nays is important in making each member of either House fix his responsibility for his vote by the entering of it on the public journal instead of concealing his individual action under the action of the mass of the House on the passage of particular measures. The importance of this will often make the representative shrink from putting upon the record a vote which he might be willing to give without it. This mode of voting by yeas and nays, if applied to every question that arises in either House, would so obstruct public business as to be vicious in practice. The power to take the vote by yeas and nays is therefore to be properly qualified so as to give to a helpless minority the right to compel a show of hands on any question by requiring such a vote by such a number of members who desire it as would prevent

the undue obstruction of public business and yet give the power to a reasonable number of members to require suck vote. These considerations justify the requirement of one-fifth of those present in order to the entering of the vote by yeas and nays.¹

At this point we may recur to the question of a quorum. We have seen that a quorum to do business consists of a majority of each House, and we have seen that a majority of each House is a majority of those who are members thereof and might be present to take part in its proceedings. How is this fact to be ascertained? What would be a proper rule when a division occurs upon the vote upon any proposition and the count of members so voting on either side will not amount to a quorum, while there may be members present and not voting who will, with those who have voted in the affirmative or negative, make a quorum? The device resorted to in such cases has been to demand a vote by yeas and nays, in order, if possible, to obtain the vote of all the members present; and yet the members who are present may refuse to vote. And the question has arisen, does a quorum mean a quorum of members present and voting, or a quorum of all the members present whether voting or not? The rule adopted in the Fifty-first Congress was that the names of members not voting "shall be noted by the clerk and recorded in the journal and reported with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business." The constitutionality of this rule came under the consideration of the Supreme Court in 1891.²

The Supreme Court decided that this was a constitutional rule, and that the members present, whether voting or not voting, were proper to be counted as making a quorum, and that, though a quorum did not vote upon the measure, yet if the members present and not voting, with those so vot-

ing, may be more than a majority of the House, it constituted a quorum; and a law was legally passed by the House, when less than a quorum voted upon its passage, if non-voting members present with those so voting made a quorum. The court held that the House, having power to determine the rules of its proceedings, had the power to adopt such a rule as this, and that a majority of those present in the House at the time of voting, though a majority did not vote, was a quorum constituted to do business, and that the bill was passed by such a House, though the majority of the House did not vote for its passage.¹ In a previous case to this the Supreme Court had decided² that where a bill is signed by the speaker of the House and by the president of the Senate in open session, it is an official attestation by the two Houses that such a bill has passed Congress; and when such bill is approved by the President and is deposited in the State Department according to law, its authentication as a bill that has passed Congress is complete and unimpeachable, and it is incompetent to show from the journals of either House that such act did not pass in the precise form in which it was so signed by the presiding officers of the two Houses and approved by the President. The court will not inquire into the validity of the action of the presiding officer of either House by seeking for evidence upon their journals to impeach this final act of authentication.

§ 205. The fourth clause of section 5 is in these words: "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." This clause may be considered with the provision in section 3, article II, of the Constitution, which reads thus: "He (the President) may, on extraor-

¹ The rule quoted in the above decision is practically the same as one introduced by the author in the House of Representatives January 28, 1880, but subsequently with-

drawn. See "The Speaker of the House of Representatives," Follett, p. 189 et seq. 2 Field v. Clark, 143 U. S. 649.

dinary occasions, convene both Houses, or either of them, 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."

The first of these clauses makes the duration of each session of Congress depend solely on their concurrent will, except where the two Houses disagree in respect to the time of adjournment, in which case the President may adjourn them to such time as he thinks proper. The independence of Congress, therefore, is fixed, as its adjournment depends only upon itself, where the two Houses have agreed on the question of continued session or adjournment. It is only when they differ as to adjournment that the President can intervene. Under the British Constitution the king may prorogue the parliament; this was a power which interfered greatly with the independence of parliament. It is abridged with us by the provision above stated, so that the President can only prorogue by the adjournment of both Houses when they disagree upon the question of adjournment. The adjournment of one House is not the adjournment of the other � they are independent in this matter; nor can either House adjourn separately for a longer period than three days. This limitation upon the power of each House is needful to prevent either House from practically, by its separate action, adjourning both, which can only be done by either House under this provision for a period limited to three days. This explains a practice very common in Congress where either House, not having business to transact from day to day, adjourns for three days, but can do so no longer. These provisions, excepting the special power of the President above referred to, make it impossible for the President to do what the king so often did in reference to the colonial legislatures, by the prorogation and dissolution of legislative bodies at his pleasure.¹

The question has been discussed in England and in this country, What power has either House to deal with and

punish intruders upon its deliberations, by any rule of its proceedings, or as a power incident to its constitutional existence as a part of the legislature of the Union? A very instructive case upon this question is that of Stockdale v. Hansard.¹ This power to deal with intruders, by expelling them from the House, or by punishing them for contempt or disorder, would seem to rest not only on the implication of such power as is essential to preserve the capacity of the body for performing its public duties, which is in reality simply the power of self-protection, but may be deduced from a former clause, by which the House may determine the rules of its proceedings, followed by the power to punish its members for disorderly behavior, etc. Under this, may it not determine, as a part of its rules of procedure, that that procedure shall not be intruded upon or obstructed by a stranger unless under a penalty? Can a mob or a single person break into the halls of legislation, and the legislative body be impotent to exclude and punish the intruders? If a House, in a proper investigation, requires a witness to testify, shall his contempt of their proper demand succeed because of the impotence of the House to enforce it? It would seem, therefore, to be clear that the power to punish, as well as to expel, intruders, and to enforce authority against a witness by punishing his contempt in refusing to answer, is inferable from the existence of the House as a deliberative body and from the above-quoted words of the Constitution. Two decisions in the Supreme Court sustain this view² in part.

The first of these cases presents a strong view in support of those already stated; the last case is not wholly in accord, and doubts the decision of Anderson v. Dunn, but puts upon it the important restriction that where the House has no

¹ 36 E. C. L. R. 88. See also 1 Tucker's Blackstone, 2; Jefferson's Manual, sec. 3; Rawle on the Constitution, ch. 4, p. 48. See also Kielly v. Carson, 4 Moo. P. C. 63.

² Anderson v. Dunn, 6 Wheat, 204; Kilbourn v. Thompson, 103 U. S. 168; In re Chapman, 166 U. S. 661.

right to make the investigation in the course of which the question is asked, it has no right to punish the witness for not answering the question. The lack of power to make the investigation inheres in its right to put the question; and having no power to put that, it cannot punish the witness for refusing to answer. This case would seem to confine the power of the House to punish a witness for contempt only to cases where the House is performing a function which is expressly confided to it.

It may perhaps be beyond the power of the House to infer its power to punish for contempt as incident to a granted power, and to hold that, where such implied power is essential to the general powers of the House, Congress, under the coefficient power,¹ should pass such law as it shall deem necessary and proper to carry into execution the power vested in either House; or Congress might pass a law subjecting to prosecution and punishment any party not a member of the House who should disturb its proceedings, or should disobey its proper command. Some such legislation Congress has passed, making such offenses cognizable by the United States courts.²

The House of Representatives has repeatedly punished persons not members of the House for disorderly behavior and violation of the privileges of members of the House. A celebrated case of this kind was that of Patrick Wood, who, for an assault upon a member of Congress in the city of Richmond, more than a hundred miles from the capital of the Union, was punished by imprisonment for several months, and for a period running beyond the session of Congress, contrary to the decision in Anderson v. Dunn, supra, which held that the House could not imprison in any such case beyond its session.

The power to imprison was exerted by the House of Representatives in the case of Randall in 1795, for an attempt to corrupt a member; in another case in 1796, in which a

challenge was given to a member; in Houston's case in 1832, for an assault upon a member. In these last cases the punishment was by reprimand by the speaker; and in 1800, Duane, for a libel against the Senate, was punished by imprisonment. The power to imprison, to fine, or to inflict more severe penalties, might well be regarded as in conflict with the fifth and sixth amendments of the Constitution of the United States; still the power by immediate action to prevent a present disorder by a stranger may well be held to be a preventive and not a punitive action. To arrest and exclude an intruder is simply remedial; to punish for a past transgression is in the nature of criminal procedure; and it seems as clear that either House has power, without any act of Congress, to use any means necessary to prevent a present disorder, by excluding a single intruder or clearing the House of all parties who are engaged in a disturbance of the proceedings of the House. This is remedial, not punitive.

The decision in Kilbourn v. Thompson materially qualifies the doctrine of Anderson v. Dunn and must therefore be regarded as an authoritative judgment of the Supreme Court as to the extent of the power of the two Houses in cases of disorder or contempt of its authority by any party not a member of the House;¹ but it seems to be clear that the right of the House to be exempt from intrusion or disobedience of its lawful orders may be vindicated by an act of Congress under the coefficient power of the Constitution;² by which either House might, of its own motion, take such immediate or remedial action as it should deem proper, or invest the courts of the United States with power to punish the same by criminal procedure.

§ 206. Article I, section 6. Under the Articles of Confederation³ each State maintained its own delegates in Congress. In the British House of Commons, members in early times were paid by their respective constituents, but at pres-

¹ In re Chapman, 166 U. S. 661, had not been reported when the above was written. � EDITOR.

ent they receive no compensation. Under the Federal Constitution the reasons in favor of allowing compensation are very strong. In a society like that of England, where caste prevails to a large extent, even in the ranks of society below the nobility, it may be tolerated, but it excludes from the public service all who are not able out of their own means to support themselves while engaged in the discharge of representative duties. The representative must be a man of sufficient wealth for self-support, and under democratic institutions this was very objectionable; for while suffrage may include all classes, the suffragan, if of the poorer class, could not vote for a representative of his own class, because he would be unable to serve. To ensure an unlimited range of selection, all must receive for their services a compensation, to be ascertained by law. In addition it was provided that the compensation should be paid out of the treasury of the United States, and this for the reason that any inequality of compensation, which might result from leaving the amount to the several States, might be productive of evil and result in difference in social position between the members, which must be adapted to the means to sustain them in it.¹ It was well that the rate of compensation should not be unalterably fixed by the Constitution, but should be left to Congress to determine according to the change in social conditions that might arise in the future. Accordingly, Congress has changed the rate of compensation very often during the history of the Union.

The next part of the clause is very important: "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 any speech or debate in either House they shall not be questioned in any other place."

This privilege from arrest has been immemorially a privilege of both Houses of the British Parliament.² It was even

larger than is provided by this clause of our Constitution. If the representative of the people was liable to arrest, he could be taken by judicial process from the duties which he owed his constituency. It is therefore a primary privilege, secured to the constituency and to the House of which he is a member and in which he has a potential voice; it is a privilege secondary to the representative. It is therefore a privilege necessary to the discharge of paramount public duty. In England a like privilege was secured to the servants of the member and to his property; but this is not included in this provision of the Constitution. This privilege is against the summons to testify or a summons against him as a party, or to serve on a jury, for disobedience to which he would be liable to an attachment of his person. The arrest of the member is therefore a trespass ab initio, for which he may maintain an action or proceed against the transgressor by way of indictment; he may also be discharged from arrest by habeas corpus.¹

The privilege from arrest applies during the attendance of the members at the sessions of their respective Houses, and in going to and returning from the same. This is more restricted as to time than is accorded to members of parliament; and these words as to going to, and returning from, must be interpreted as a reasonable time. Therefore a member need not set out immediately on his return, but has time to settle his private affairs and prepare for his journey; nor does it require that he should take the shortest and most direct route home, but allows a reasonable deviation from that route.

But despite this privilege the exception to it is important. Members are not exempt from arrest for treason, felony, or breach of the peace. Such crimes against the government, and against the private citizen, do not exempt him from arrest, because public justice would thereby be defeated. And

¹ Jefferson's Manual; Case of the Borough of Warwick, 2 Strange, 990; Rex v. Wilks, 2 Wilson's Rep.

it was held in Parliament, in the case of Wilks, that he was liable to arrest for a seditious libel, though contrary to the opinion of the judges in Rex v. Wilks.¹

The phrase, "breach of the peace," has been held to extend to all indictable offenses, whether attended with force, or only a constructive breach of the peace, because they violate good order.² This exception to the privilege is the same with that which is made to the privileges of the members of Parliament.

§ 207. The next great privilege is derived from the language of the Bill of Rights in England,³ which reads thus: "That the freedom of speech, and debates, or proceedings in parliament, which ought not to be impeached or questioned in any court or place out of parliament."

The insertion of this provision in the Bill of Rights, which was the foundation of the Constitutional Monarchy of England, put an end to what had so often been made an abuse of the independence of Parliament by royal arrests of members for words spoken in debate, and the prosecution of such members for such words. It was natural that the framers of the Constitution should insert this precious privilege in respect to the Houses of Congress, for if a member was punishable or questioned by any other authority than the House of which he was a component part, debate would be conducted under restrictions, which would make freedom of utterance impossible. It is akin to the same privilege which is accorded to a judge, who is not to be questioned or prosecuted civilly or criminally for any act in the line of his duty which is honestly and conscientiously performed.⁴ But this privilege does not protect the member from responsibility for what he may say outside of the House, and as a private person, though a member thereof.⁵

⁴ Randall v. Brigham, 7 Wall. 523. ⁵ Jefferson's Manual, 3; 1 Blackstone's Commentaries, 164, 165; Rex v. Creevy, 1 Maule, 273; Coffin v. Coffin, 4 Mass. 1; Federalist, Nos, LV, LVI.

In Rex v. Creevy, supra, a member was held liable for libelous matter contained in a speech delivered in the House, which he published or distributed, and was held liable, not for what he spoke in the House as a member, but for what he published out of the House as a man; but this view would hardly be held applicable to the publication of a speech by a member of either House of Congress, because the publication of debates in England is not strictly lawful, unless by leave of the House; but Congress by law directs the publication of the debates in the House, and this would not be an act of the member for which he would be personally responsible, so that the privilege of irresponsibility would not be denied to the publication of such speech in pamphlet form, and the distribution of it by the member; for such publication is merely a copy of what has been published in the debates, and is regarded in this country as a proper mode of informing the constituency of a member of the part which he has taken in debate. His responsibility to them requires or justifies such publication, and he cannot be held responsible for making known to them in this form, and by a copy of published debates, what he has said as their representative in the body of which he is a member.¹

In the case of Kilbourn v. Thompson, supra, this question is discussed, and the doctrine is stated that while a sergeant-at-arms was responsible for the arrest and imprisonment of Kilbourn upon the grounds already mentioned, yet the speaker and other members of the House, for privity with the sergeant-at-arms in the arrest of Kilbourn, were protected under this clause of the Constitution, because what they did they did by a vote, report and other action as members of the House, and therefore were protected from being questioned for any such in any other place.

§ 208. The next clause is as follows: "No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the

¹ Story on the Constitution, sec. 863, and Speeches of Doddridge and Burgess in the House in May, 1832.

United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office."^l

The first part of this clause was intended to take from the senator or representative any personal motive which might operate upon him to create a new office or to increase the emoluments of any office, new or old. In the report of the Committee of Detail, August 6, 1787, the draft of the Constitution so reported denied to members of each House eligibility or capacity to hold any office under the United States during the time for which they might respectively be elected, and a like ineligibility and incapacity to hold by members of the Senate for one year afterwards.² The obvious purpose of this provision was to exclude executive influence upon the members of either House of Congress through the power of appointment. Mr. King moved, September 3, 1787, to insert the word "created" before the word "during," so as to make the disability of the member apply only to the office created during the time for which the members were respectively elected.³

It was then proposed to insert the words, "created before, or the emoluments whereof shall have been increased;" which amendment was adopted. In the report of the Committee on Style on the 12th of September, 1787, the words, "during the time for which he was elected," were repeated so as to apply to the period of disability as well as to the period during which the office was created or its emoluments increased;⁴ and in that form it was finally adopted. It is obvious that for some reason not divulged in the debates, or by inadvertence, the incapacity to take an office created during the term of a senator or representative which

¹ Journal of Convention, 214, 319, 323; Rawle on the Constitution, ch. 19, p. 184, etc.; 1 Tucker's Blackstone, Appen., 198, 214, 215, 375.

had been created, or the emoluments of which had been increased, during his term, expired with the term of the senator or representative; so that a member of Congress may be concerned in the creation of a new office, or in increasing the emoluments of a new or old office, on the last day of his term, and as to which he is eligible the next day. This provision against venal influence in the vote of a member of Congress is therefore very inadequate and may be readily evaded; but the provision has been vindicated by Judge Story,¹ and has been excused in the Federalist.²

The second branch of this clause prevents any person holding any office under the United States from being a member of either House during his continuance in office. As all officers of the United States are appointed by the executive itself, or by it with the consent and advice of the Senate, this provision was clearly intended to exclude the official influence of those who were dependent upon the will of the executive from taking part in the deliberations of the legislature. This influence might be greatly extended, and might be very small; but small or great, it is a valuable provision against any influence by the executive department in legislation. It is in conformity with the celebrated maxim of Montesquieu, to which reference has previously been made.

This principle is very different from that which rules in the British Constitution. In England at this day and during this century, all the members of the cabinet constitute in reality the British executive for all efficient purposes, though the dignity of the executive is embodied in the crown. The prime minister must be a leader of his party in one of the houses of parliament, usually in the House of Commons; and while the crown selects the members of the cabinet they are members of one or other House of Parliament, and hold office by the sanction of the House of Commons. A ministry in whom that House has no confidence must resign as soon as the House declares its lack of confidence, expressly or in-

ferably, despite the wish of the monarch. By these means there comes to be an essentially democratic infusion into the cabinet of the crown; the crown appoints, and the House of Commons confirms. If the House of Commons disaffirms, the appointment is a nullity. These principles have been sufficiently explained supra.¹ An interesting chapter on the cabinet is to be found in Bagehot's English Constitution.²

These views demonstrate that, after the lapse of ages, the British crown in all of its efficient power is in a large degree, through its cabinet, responsible to the English House of Commons, and through it to the people. The presence of the cabinet on the floor of the two Houses, where its members are confronted by the constituency to which they are responsible, is therefore an essential element in the organism of the British government. Without it the crown would be independent of the legislature and could defeat legislation by its absolute veto; but the British Constitution as it is has made the veto of the monarch a thing not known for two centuries, because such veto would now be a signal for the dismissal of the cabinet, which holds virtually the efficient powers of the executive.

In the United States and under our Constitution, the President has a constituency (to which he is responsible) different from the constituencies to which senators and representatives are responsible. To make him or his cabinet hold power under responsibility to either or both Houses of Congress would be a total subversion of our constitutional organization. The admission of the members of the cabinet to the floor of either House, and as members thereof, would not only admit the presence of executive influence to control the legislation of the country, but would poison the independence of the senator as representative of a State or of a representative with a popular constituency by the seductive and dangerous influence of executive honor and emolument. The senator or representative would be an appointee

of the executive, while he was a representative of the States. Such a condition of things would destroy those checks and balances of which we have so fully spoken, and violate the rule of separation of the departments under the maxim of Montesquieu, which had so controlling an influence in framing the Federal government. The purpose of the British Constitution in admitting members of the cabinet to the floor of either House was to enforce their responsibility to the people. To do so in the United States could have no such purpose, for neither the cabinet nor the President is responsible to either House of Congress.

These reasons were fully in the minds of the framers of the Constitution; and while we readily see the importance attached to the presence of the cabinet in the two Houses of Parliament, no such principle can operate in our Federal system, because the reasons which induce the practice in the British government have no place in the structure of our own. The genius of the two systems is, quoad hoc, totally diverse. To attempt to ingraft the English practice upon our own polity would be to put a piece of old cloth on a new garment.

To admit the cabinet to a seat on the floor of either House, not as members, but to be required to answer all of the inquiries of members of either body, and to divulge the motives of executive action in the various departments, would not only bring to bear upon the action of the House the influence of the presence of executive officers who were neither members of it nor responsible to it, which would be vicious in its tendency, but on the other hand would expose the executive policy of the President to improper inquisition by either House through inquiry addressed to his subordinate agents in the cabinet. The independence of the executive, secured by the Constitution, would thus be impaired or overthrown, and the insidious presence of executive power and influence might operate disastrously though in subtle forms upon the independence of the representatives of the people.

President or of the executive departments as to matters pertaining to the public interest is fully secured by the public reports of those departments, the annual and special messages of the President, and by the fact that information from the departments is furnished upon request of either House, so far as is not inconsistent with the public good. The polity of the English system is quite strongly presented by Judge Story.¹ Under the British Constitution any influence of the Crown through the members of the House of Commons, who are appointed to places in his cabinet, is prevented by a provision, that the acceptance of office under the Crown vacates the seat of the member of the House of Commons, and that he must stand for a new election, in which his constituency shall be allowed to say whether they can trust him as their representative when he holds office under the Crown.

§ 209. The seventh section of the first article and first clause thereof declares, "All bills for raising revenue, shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills." In the earliest parliamentary records, the lords and commons made their several grants of supply without mutual communication; this continued as late as the reign of Edward the Third; after this time the change occurred, when the commons were said to grant with the assent of the lords. The commons' proportion of the taxes being far greater than that of the lords, the grant was deemed to be theirs, subject only to the assent of the lords. Afterwards, in the reign of Henry the Eighth, lords and commons were said to grant; but in the first Parliament of Charles the First, the commons recited the grant

¹ Story on the Constitution, secs. 866, 869, e contra; Rawle on the Constitution, ch. 19; 1 Tucker's Blackstone, Appen., 198, 214, 215; Federalist, No. LV. A measure was proposed many years ago by a dis-

tinguished senator from Ohio, Mr. Pendleton, for admitting members of the cabinet to the floor of either House, for the purposes of obtaining information and the like. The proposal failed.

as wholly their own; but it has now come to be a settled rule of the government, that money bills originate with the commons; these the lords may refuse to pass, but cannot alter or amend. This seems to rest upon the principle, that as the commons bore a much larger portion of the burden than the lords, the power to measure the burden should originate with the commons; and if the burden bore too heavily on the lords, the lords might reject, but the initiative in the construction of a scheme of taxation was left to the representatives of the people, who bore the largest burden, with protection against undue burden on the lords by their right of dissent to the whole bill, or concurrence in all of its provisions. If the initiative had been left to either house, indifferently, there would naturally have been a collision as to which bill should be first considered, and in the conflict the revenue bills might fail; but the exclusive initiative power being vested in the commons, nothing is left to the lords but to assent to the whole, or by dissent to defeat the public need for revenue.¹

In the convention which framed the Federal system, we have seen that in the compromise as to the organism of the two Houses the equality of States in the Senate was sought to be set off by the peculiar power given to the body representing the popular constituency, to have the initiative in bills known in England as money bills; that is, for taxation and appropriation. It was argued: you may safely give equality of vote to all the States in the Senate, if you give the initiative of taxation and appropriation to the body representing numbers. Much discussion occurred as to the practical value of this initiative power, but the mass of the convention justly valued it as a groat advantage to the large States, because it gave to the taxpayer, as such, the initiative as to the amount of tax, and gave to the States, as such, only the power to amend, alter or reject. This is one important

In England grants to the Crown by the commons with the assent of the lords depended upon the exercise of two functions: one to raise the money, the other to appropriate it to the public purposes for which the Crown should use it. The amount of burden and the distribution of it upon the people was one thing, and the purposes for which the money should be appropriated was an entirely distinct thing. The first defined the exaction by taxation which was proper to be imposed upon the people; the latter was a check upon the Crown as to the purposes for which public money was to be appropriated. The first protected the taxpayer from any exaction to which, by his representatives, he did not consent; the other was a defense of the people of the kingdom from royal projects which the people's representatives did not approve. Without the first the people might be unjustly burdened with taxes; without the second the Crown might waste

the money granted by the people, from wars of ambition and treaties and other acts destructive to the well-being of the nation.

Under our system of government, where both Houses of Congress as well as the President are elected directly or indirectly by the people, this responsibility as to appropriations will always be directly or indirectly to the people; while, therefore, the initiative as to taxation should be with the house that represents the mass of taxpayers, the initiative as to the objects of appropriation may very safely be entrusted to either House consistently with the popular will.

§ 210. It would be interesting to trace in detail how the English rule, which gives to the House of Commons the initiation of all money bills, which includes as well bills for taxation as for appropriation, came to be in our Constitution so modified as to give the initiative to the House of Representatives in all bills for raising revenue, and not for appropriation. It will be sufficient to show that this was the

intention of the convention in the language used in this clause of the Constitution. At one time during the convention the proposition to give the House the initiative in all "money bills" and to exclude the Senate therefrom was defeated.¹ After much struggle, heretofore referred to, a committee was appointed July 2d for the purpose of proposing some compromise. It reported July 5th, and the convention adopted July 16th the proposition "That all bills for raising or appropriating money ... shall originate in the first branch of the Legislature of the United States, and shall not be altered or amended in the second branch."² This proposition, interpreting the words "money bills" used in the first proposition, was referred to the Committee of Detail, and was reported back in the same terms by that committee.³All these propositions, on the 13th of August, after a series of motions, were defeated.⁴ August 15th Mr. Strong proposed that each House might originate all bills, "except bills for raising money for the purposes of revenue, or for appropriating the same, which shall originate in the House of Representatives; but the Senate may propose or concur with amendments as in other cases."⁵ September the 15th Mr. Brearly reported from the committee of eleven, as a substitute, "all bills for raising revenue shall originate in the House of Representatives, and shall be subject to alterations and amendments by the Senate." The consideration of this was postponed.⁶ September the 8th this proposition was adopted with this alteration: "But the Senate may propose or concur with amendments, as in other bills."⁷ September the 12th this clause was reported by the Committee of Style, and retained as a part of the Constitution.⁸

It is thus seen that the convention understood the English phrase "money bills" to embrace bills for raising revenue and bills for appropriating revenue, and that the convention

in its final action discriminated between these branches of the term "money bills," as understood in England, and purposely gave the initiative to the House as to bills for raising revenue, and left bills for appropriating revenue to the rule, as to all other bills; that is, that either House might originate appropriation bills as they did in all other cases.

§ 211. This explanation as to the meaning attached by the convention to the words, "All bills for raising revenue," is given thus fully, because in 1872 the question was discussed by

the committees of the two Houses of Congress; the House insisting that the initiative on bills for appropriation of revenue was confided to the House of Representatives as well as bills for raising revenue. The facts above stated seem to settle the question against the claim of the House to originate bills for appropriation as well as for raising revenue. The reasons already given for the power of the House to originate both are inapplicable to our Constitution; for while the amount and distribution of taxation is proper to be vested in the representatives of the taxpayers, there is no reason why, when that has been done by the initiative action of the House, the purposes of appropriation shall not be as well defined by the initiative action of the Senate. Discrimination as to the objects of appropriation cannot increase the burden imposed on the taxpayers, and may as well be made by the one House as the other. In England the House of Commons took advantage of this initiative power to raise revenue, by attaching to such revenue bills legislative provisions in respect to matters foreign to the money bill, and the lords in 1702 passed a standing rule, "That any clause or clauses to a Bill of Aid or Supply, is unparliamentary, and tends to the destruction of the Constitution of this government."¹The reason of this rule was that the addition of foreign matter to such bills tended to coerce the lords to assent to that, though it might be objectionable to them, in order to secure the passage of the bill for raising revenue.

This objection made by the House of Lords was used with great force in the House of Representatives in 1880 upon the consideration of a bill for an appropriation for the support of the army, in which was inserted a proviso that the army should not be used to influence any elections by the people. Mr. Garfield contended that this proviso was foreign matter; the insertion of which would shake "the granite foundations of free consent in both Houses and with the President;" but the answer was made that such proviso was germane to the bill, because appropriations for the army could not be made for a longer period than two years,¹ and that this clause was made a part of the Constitution to enable the Congress, in appropriating money for the army, to make them upon such terms as would prevent the President as commander-in-chief from using the army for unconstitutional purposes.²

§ 212. It was suggested by an early and able commentator that the term to raise revenue included post-office bills, mint bills, and bills in reference to the sale of public lands.³This seems to be a misconception; for such bills do not impose a burden on taxpayers; and this clause historically, and as applied in the English practice, only related to revenue raised by taxation, and was intended to protect taxpayers.

The words used as to the Senate are not as clear as is usual in the Constitution; but taken altogether, it obviously means that the Senate might propose amendments to the revenue bill and concur with any afterward made by the House. This power was properly vested in the Senate, because while the House represents the taxpayers at large, the Senate represents the States, who are interested in direct taxes, which were to be apportioned between the Status; and as to general taxes, the large States, by their dominant power in the House, might levy them to the injury of the small States.

² Federalist, No. LXVIII; Hallam's Constitutional History, ch. 15; Garfield's Speech, vol. 2 of his Works, pp. 655, 679, 685; Author's

Reply, April 4, 1879, Congressional Record, and Reply of General Garfield (Works of Garfield, vol. II, p. 675).

§ 213. The next clause of the seventh section relates to the veto power, the terms of which may be seen in the Appendix. This power of the executive of England was absolute, but has never been exercised since 1682. The royal veto was intended to protect the prerogative of the crown; but the President with us has no prerogative, but only delegated powers, with the provision that Congress shall pass all laws necessary and proper to carry into execution the powers vested in the President. To give to the President an absolute veto would be to vest in him an autocratic power, which would

be dangerous; hence the convention decided, without difficulty, that the veto given to the President should be qualified, not absolute; so qualified as to allow a two-thirds majority of the two Houses to overcome it, and make it of no avail. The two propositions which were considered in the convention wore whether it should be overcome by a two-thirds vote or a three-fourths vote of the two Houses. Two-thirds was finally adopted as the most judicious, because three-fourths would usually allow the veto to be absolute, and a majority would make it of no avail. On this subject, reference to the authorities and to the debates is all that is necessary.¹

The purposes of this veto power may be summarized: (a) To protect the executive power against invasion by Congress, and against the hostile or insufficient action of Congress, under the eighteenth clause of section 8, article I, above referred to. (b) To protect the Constitution against unconstitutional legislative action, and against injudicious and hasty legislation. (c) By article II, section 3, the President may recommend to the Congress "such measures as he shall judge necessary and expedient." This is not initiative legislation, but only a recommendation of such to the legislative body. But this veto introduces the President into

¹ Journal of Convention, 69, 96, 97, 195, 253, 254, 355; Federalist, Nos. LI, LXIX, LXXIII; 1 Kent's Commen-

taries, lecture 11; 1 Tucker's Blackstone, Appen., 225, 329; Story's Commentaries, secs. 878-890.

legislative action to the extent of preventing a bill from becoming a law; but he cannot amend or alter the law in any respect. He checks, but does not legislate, (d) His veto is accompanied with his reasons for disapproval. This has the effect of calling to the attention of Congress the validity of his objection, which possibly it had overlooked. This check is in so far valuable; but it is not absolute, for it may be overruled by the vote of two-thirds of each House, the vote being taken by yeas and nays, (e) The main advantage of this veto power is found in its being an important part of that system of checks and balances, established by the Constitution to prevent unconstitutional or wrongful legislation, which requires the concurrent majorities of the popular will in the three forms in which that popular will is manifested through the organism of each House of Congress and through that of the executive department.

The House of Representatives, as we have seen, represents public sentiment according to the number of persons in the State. This is substantially the numerical majority. The Senate represents the equipollency of the States, regardless of the respective numbers of their people. These two majorities, based on such diverse constituencies, are great checks for statehood upon numbers, and of numbers upon statehood. The President, however, is the representative of the States, estimated by neither numbers nor equality of statehood, but by the two combined; each State having a number of electors equal to its number of senators and representatives. These electors are appointed as the State legislature may prescribe, and are not necessarily, therefore, elected by popular vote, nor by the State legislatures; and in default of the election of a President by some one receiving a majority of all the electors, he must be elected by the House of Representatives, which represents numbers and popular constituencies, but voting for President upon the principle of equipollency of States. It is obvious, therefore, that a bill, before it becomes a law, must be approved by three constituencies, singularly diverse from each other.

The purpose of the Constitution was wisely directed not to make legislation easy, but to make it difficult, in requiring popular consent to be expressed through, three diverse organisms, and so diverse as that a concurrence of all three would be a supreme assurance that the result could not be disastrous to the people or to the States. Its object was to obstruct the passage of a bill by forbidding any to become law until these diverse expressions of the popular will should concur in their sanction of its constitutionality and wisdom. While the veto power appears to increase executive influence to too great an extent, yet its danger is avoided by two considerations: it has no positive force, but only negative; it prevents, but effects nothing; it is not aggressive, it is only obstructive. The Fathers believed that the danger of liberty was in the misuse, not the non-use, of power; over-action was more perilous to the individual citizen than non-action; and the President, by preventing bad laws, would do infinitely more good than in vetoing good laws. Another consideration is important. Executive activity is always proportioned to the amount of legislation; the more laws there are, the more need for executive power; the more enterprises Congress inaugurates, the more patronage and influence the President will have. The exercise of his negative is a restriction upon his positive power; and executive influence has in all our history increased in direct proportion to the enterprises initiated by Congress and the aggressive policy which Congress adopts. So far from the veto expanding executive influence, it tends to diminish it. The speech of Mr. Calhoun on the veto power, and the proposition to amend the Constitution by depriving the President of it, in 1841, presents the most philosophical and profound view of this subject that has ever been given, and is worthy of perusal and study.¹

It was proposed during the convention to unite the Supreme Court with the President in revising the legislation of Congress. This obviously had in view the duty of the exec-

utive, as of both Houses, to conform their legislation to the Constitution, which the members of both Houses and the President were alike sworn to support, while the Supreme Court is charged with the function of declaring a law unconstitutional only when repugnant to the Constitution. This function, as we have seen, is different from the higher one with which the legislature and executive are charged. These two must put no law on the statute book and let no bill pass until it answers the challenge of the Constitution and satisfies them that it is unauthorized by that instrument and not merely repugnant to it.¹ But other objections to this provision as to the Supreme Court were strong. As a court, its jurisdiction is to interpret and apply law, not to make it: jus dicere non dare. The proposal would unite in the court the function of two departments, and defeat its function of interpretation by giving it the function of making law. Besides all this, the convention might well fear lest the exercise of any political function would soil the ermine of the judge.

§ 214. A bill, order, resolution or vote (except as to adjournment), having passed by the majority of both Houses, is presented to the President for his consideration; and ten days, Sundays excepted, are allowed for his consideration. If he approves the bill, it becomes a law; if he does not disapprove within the ten days, it is law without his consent; if he disapproves within ten days, he must send the bill or other act to the House in which it originated, with a statement of his objections. This is his constitutional appeal for reconsideration of the act and a statement of reasons to induce Congress not to repass it. The vote is taken in the House in which it originated and to which it is returned by the President. If on a vote of yeas and nays the bill is repassed by two-thirds majority, it is sent to the other House for consideration, and if there passed by a two-thirds majority it is a law non obstante the objections of the President; if either

House fails to pass it by a two-thirds vote, it does not become a law. But the President must have ten days. If by adjournment or expiration of its term Congress closes its session before the ten days elapse, the bill, order, etc., not having been approved by the President, fails to become law.

The proceedings of the two bodies of Congress are prescribed by each for itself. These rules, in a large degree, are in accordance with the procedure in the two Houses of the English Parliament, but they may be changed and modified at will. In respect to these, reference may be had to some authors.¹

§ 215. The chief powers of Congress are enumerated in article I, section 8, of the Constitution. We have already seen that one of the vices of the Confederation was the absence of power in Congress under the articles to raise its own revenue for the execution of its important powers.

The eighth article of the Confederation ran in these words: "All charges of war, and all other expenses that shall be incurred for the common defense or general welfare and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled shall from time to time direct and appoint."

"The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled."

¹ Story on the Constitution, secs. 891, 898; 1 Tucker's Blackstone, Appen., 229, 230; Kent's Commen-

The Constitution of the United States, in lieu of this provision, makes this provision in the first clause of article I, section 8:

"The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States."

This delegates power to Congress, and it has no other. "All legislative powers herein granted shall be vested in a Congress of the United States," etc.¹ To execute this power the laws passed must be necessary and proper for the purpose.² The tenth amendment of the Constitution confirms all this.

1st. It is a revenue power vested in Congress as a substitute for the eighth article of the Confederation, giving to the Federal government an express power to raise its own revenue independent of State action; as it had been dependent on State will under the Confederation. The language imports a revenue power to lay and collect. These words are wedded and are not to be divorced. Taxes are not to be laid except to be collected; revenue is the object of the grant and none other. Hence no other should be employed,

The authors of the Federalist³ attempt no specific definition of the meaning attached to each of these terms. Nor is there in "The Debates of the Convention," reported by Mr. Madison, any precise definition of them. We are left, therefore, to seek the meaning of them as best we may by reference to other clauses of the Constitution, and the meaning attached to them by writers on political economy. "Taxes"

is a broad word, which, in its general signification, may mean all methods by which a government, under its power of eminent domain, can compel a contribution to its public revenue by the citizens of a country out of their private means. The word is used in various parts of the Constitution, sometimes with the adjective prefixed, and sometimes without it. The term "direct taxes" is used in two clauses of the Constitution � article I, section 2, clause 3, and in article I, section 9, clause 4. The use of this adjective prefixed to the word "taxes" does not appear elsewhere in the Constitution, and in both of these cases it is connected with the limitation the Constitution makes upon the power to levy direct taxes.

The word "taxes," as the alternative of the word "duty," appears in two places in the Constitution.¹ In the first of these it is said, in reference to the migration or importation of persons into any of the States, that they shall not be prohibited prior to 1808, but a "tax or duty may be imposed upon such importation not exceeding ten dollars for each person." This use of the two terms tax and duty may have been to cover any aspect in which an imported slave could be viewed, either as a person or property. In the second case, the language, "No tax or duty shall be laid on articles exported from any State," was probably intended to cover the case of a tax on an article which was in transitu to be exported, or the case of a duty upon the article when it became a subject of export. In other clauses of the Constitution the word "imposts" is in the alternative of the word "duties," as to the power of the State in reference to such being laid on imports or exports.²

From these uses of the term "taxes" in the clauses mentioned, and "direct taxes" in the two clauses mentioned, it would seem that the framers of the Constitution had in their minds certain forms of taxes which they called "direct

taxes," and other forms of taxes which were the alternate of "duties." So that taxes which were the constitutional synonym of duties were to be distinguished from the taxes which were "direct taxes." In other words, it would seem to be the true construction of the Constitution that taxes which were "direct taxes" were to be laid according to the apportionment plan, which in the second case where those terms are used is connected with their use, and all other taxes which were not embraced in the term "direct taxes," and were synonymous with "duties," etc., were properly embraced within the terms "duties, imposts, and excises."

This conclusion results from the fact that while the Constitution limits the power of Congress in reference to direct taxes by requiring them to be laid according to the census apportionment, and that duties, imposts and excises must be uniform throughout the United States, it could not have meant to allow any taxation which was not included within one or the other of these groups. For if it did, then it would follow that taxes which were not direct, on the one hand, or within the terms "duties, imposts and excises," would be laid at the discretion of Congress, without being subject to either of the limits prescribed for direct taxes or for duties, imposts and excises. It would seem, therefore, to be an inevitable construction of the Constitution that no tax could be laid upon the citizen by Congress which was not either subject to the census apportionment, or to the requirement of uniformity, else it would leave to Congress some unrestrained power to lay taxes which were neither direct, nor duties, imposts and excises. All taxation, therefore, which is not direct "taxation," must have been intended to be a general term embraced in the words "duties, imposts and excises."

§ 216. What is the meaning of the word "duties?" Radically it means what is due to, and might, therefore, be coextensive with the word "taxes." But the Constitution seems to confine it to impositions on imports and exports. Thus a State is prohibited from laying imposts or duties on

imports or exports.¹ Congress is prohibited from laying a tax or duty on articles exported from any State.² And the word "duty" is also applied to tonnage.³ It may be therefore within the meaning of the framers of the Constitution that the word "duties" was applicable to imports, exports and tonnage.

The word "imposts" (imponere � to put upon) is a broad term, which might include all burdens imposed upon the citizen for the purpose of governmental revenue. In the Constitution it is made by the framers the alternative of "duties," "imposts or duties," and "duties and imposts."¹

"Excises" (excidere � to cut off from) is the withholding by the government from the producer of a part of his product as a license tax on his business, such as the whiskey tax, etc. Several cases in the Supreme Court have attempted to give a definition of these terms, and may be referred to.⁵

From what has been said it is obvious that the mode of laying "direct taxes" and those which are indirect, included under the terms "duties, imposts and excises," are subject to different restrictions. "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a number of years, and excluding Indians not taxed, three-fifths of all other persons."⁶ And further: "No capitation or other direct tax shall be laid unless in proportion to the census or enumeration hereinbefore directed to be taken."⁷

The first of these provisions affirmatively directs the mode in which the direct tax shall be apportioned; the last prohibits its being laid in any other way. Since the abolition of slavery, the "three-fifths of all other persons" has been

stricken out of the Constitution by the fourteenth amendment, which makes the basis of apportionment the whole number of free persons. The mode of apportionment has been for Congress to determine what revenue it proposes to raise from direct taxes, and then to apportion the amount to be derived from each State according to the proportion of the population of that State to the whole population. Congress then lays the taxes upon the proper subjects for direct taxation, in such wise as to derive the amount apportioned to that State.

What is the meaning of the requirement that all duties, imposts and excises shall be uniform? This word "uniform" has no reference to the burdens which, by the imposition of these duties, etc., must be laid upon the different States. Direct taxes are apportioned among the several States. Uniformity of taxation disregards State boundaries, and requires that the form of duty, impost or excise in any State shall be the same in all the States. These direct taxes, being apportioned among the several States, are a burden laid upon the citizen according to the population of the State, and the amount apportioned to any State is to be distributed among the citizens of the State so as to raise that amount; and the subject of direct taxation must, therefore, be burdened differently in the several States. Not so under the uniformity plan as to duties, imposts and excises. Upon these last the burden imposed upon the citizen of Virginia must be uniform with that which is imposed upon the citizen of California.

§ 217. A great contention has arisen as to what property in the several States is to bear the burden of direct taxation. What then are the subjects of direct taxation? One subject is positively ascertained. In the clause above quoted the language is: "No capitation or other direct tax shall be laid unless in proportion to the census," etc. This indicates that the capitation tax is a direct tax within the meaning of the Constitution. But the determination of what other subjects are within the meaning of the term "direct taxes"

constitutes the difficulty. This question was first raised in the leading case of Hylton v. United States.¹ Congress had laid a tax of a certain amount on pleasure carriages, which tax was uniform throughout the United States. The party assessed in this case contested its validity because it was a direct tax, and therefore not to be uniform, but to be according to the census apportionment. Eminent counsel argued the case, among whom was Alexander Hamilton. Among the members of the court were Judges Patterson and Wilson, who had been members of the Federal Convention, and Chase, who had been a member of the Maryland convention that ratified the Constitution. The court decided unanimously that the tax on carriages was not a direct tax, but a duty, impost or excise, which the Constitution required to be uniform.

The grounds of this decision were, in brief, that to apportion the taxes on carriages according to the census population would disastrously burden a few owners of carriages in one State, while the many owners of these in a State with even the same population would be lightly burdened. and that this gross injustice could not have been contemplated by the framers of the Constitution. Such injustice would be avoided by a uniform taxation on every such conveyance. The court intimated that the subjects of the direct tax within the meaning of the Constitution were capitation and a tax on land. This decision was followed by a number of cases holding that taxes on incomes, carriages and other personal property were not direct taxes, but were duties, imposts and excises, and were only required to be uniform.²

By the act of Congress of 1894 a tax on incomes was imposed, and the question was raised whether such tax was a direct tax to be laid according to the census apportionment, or uniform as indirect taxation, duties, etc. The argument was elaborate, as well on the original hearing as on the rehear-

ing, and the court by a bare majority for the first time, and after a century of adverse decision, held that the tax on incomes was to be laid according to the apportionment; and there were dicta to the effect that taxes on personal property of all kinds were within the term "direct taxes."¹ This decision by a bare majority of the court, against strong dissent and a large number of precedents, left the question unsettled and undecided.²

As to duties, imposts and excises, and any other form of tax not included in the term "direct taxes," the rule is uniformity. But what is uniformity? This means clearly that the form of taxation must be one, i. e., uniform. Two classes of such duties, imposts and excises have been usual. For instance, as to duties: These may be specific or ad valorem. Specific is the tax upon the thing without reference to its value; ad valorem is a tax upon the thing according to its value. One of these must not be used in one part of the United States and the other in another part; the same must be used everywhere.

§ 218. An interesting illustration of this is to be found in the duty on sugar. At one time the duty on sugar was according to its value under the Dutch standard, as it was called. Grades of sugar were measured by color, and the tax imposed everywhere was required to be upon the color standard. Congress some years ago estimated the saccharine strength of sugar according to the polariscope test, which claimed to measure the exact saccharine strength of each specimen of sugar, which was the test of its value. The Boston importers of sugar claimed that the polariscope used

¹ Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429; same case on rehearing, 158 U. S. 601.

1. A tax on income derived from realty is a tax on realty and therefore a "direct tax" by the old cases, and not being ratably laid according to the census is void.

pal bonds is a tax on the State whose political agencies the municipalities are, and hence void.

3. A tax on personal estate and income therefrom is a "direct tax," and void unless laid ratably, etc.

4. All other taxes connected with these are part of the same scheme and must be held void.

in New York was different from that used in Boston, which produced a difference in duty in the two ports to the advantage of one over the other, thus destroying the uniformity established by the Constitution. The Secretary of the Treasury required that the same instrument used in all the ports should test uniformly.

An illustration of the requirements as to the direct tax is found in the direct tax laid by Congress in 1862. This was to be apportioned among the States according to the census. The tax was enforced and collected in all the States that remained de facto in the Union; but in many of the States which were de facto out of the Union, the tax was only partially collected. Nearly twenty-five years after the Civil War closed a bill was introduced in Congress to refund the tax to the States and citizens thereof who had been compelled to pay it. The objection made to refunding it was overcome by the view that the Constitution affirmatively required that direct taxes should be laid according to the

census apportionment, and declared that such tax should be laid in no other way. The alternative was presented either to collect the tax from the States which had not paid it twenty-Jive years after it had been levied, or refund what had been levied and collected to those which had paid it. By either method the constitutional requirement would be upheld in its integrity; and as the collection after so long a time from the non-paying States would be unjust and inconvenient, Congress passed the law to refund the tax to those which had paid it, and thus established justice between all the States in the matter of the direct tax under the law of 1862.

§ 219. This clause in reference to taxation is without any express restriction except that already referred to and explained. Despite this, it has been decided that the United States cannot tax the salary of a State officer,¹ or a State municipal corporation,² or the process of State courts,³ or a

³ Warren v. Paul, 22 Ind. 276; Moore v. Quirk, 105 Mass. 49; Union Bank v. Hill, 3 Cold. (Tenn.) 325.

railroad owned by a State.¹ These decisions rest upon the strong ground that the power of Congress to pass a tax law is restricted to a law which is necessary and proper to carry its taxing power into effect; and as the taxation of a State function by the Federal government is an infringement upon the reserved power and autonomy of the States, and as the power to tax without limitation is the power to destroy,² the execution by the United States of a power which involved the possible destruction of the State functions was not only not proper, but radically inappropriate. These decisions apply in restraint of the action of the United States government upon State functions, just as a number of decisions of the Supreme Court have restrained the power of the States from taxing any of the functions of the United States government.³ An express limitation upon the general power in this first clause is found in the provision, "No tax or duty shall be laid on articles exported from any State."⁴ This was a part of the compromise between the North and the South.⁵ But a stamp required to be placed on tobacco intended for export was held not to be a tax or duty, but only a means of identification and to prevent fraud, and valid unless perverted to raising revenue thereby.⁶

Again, is it constitutional to use this taxing power for the purpose of suppressing a business in the country and not as a means of revenue, though some revenue may be derived from it? The answer seems to be clear, that a power granted as a means of raising revenue cannot be diverted from this legitimate purpose by the indirect use of it to do what Congress has no power to do by direct taxation. The end is not

² McCulloch v. Maryland, 4 Wheat. 316-368; Osborne v. Bank of United States, 9 id. 738, per Marshall, C. J.

legitimate, and therefore the law is not constitutional.¹ It is true that where the law merely imposes the tax without disclosing the indirect purpose of its imposition, the courts may have no right to declare the law unconstitutional, though, if the purpose were disclosed on the face of the act, the court? would do so.²

Chief Justice Marshall says:³ "Congress is not empowered to tax for any purposes which are within the exclusive province of the States." And it follows a fortiori that Congress is not empowered to tax so as to suppress that which is within the exclusive province of the States. The question was much discussed by one of the writers in the Federalist,⁴ whether this grant of power to Congress to tax was exclusive of the same power by the States. A reference to the tenth amendment will settle this question. That declares: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The terms of this amendment show that where particular powers of taxation, as in the case of duties on imports and exports, are prohibited to the States, then the grant of power to lay such duties is exclusive in Congress, because prohibited to the States; but all other powers relating to taxation which are not so prohibited, though they may be delegated to the United States by the Constitution, are still reserved for all needed purposes to the States respectively. Indeed, a tax may be laid by both governments on the same subject. Thus, Congress may lay a direct tax on land and a capitation tax; but this does not exclude the power in the State to lay a land tax and a poll tax. "Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled,

¹ McCulloch v. Maryland, 4 Wheat. 316, and Chief Justice Marshall's canon of construction therein, already noted.

Wall. 655, and other cases cited by Judge Cooley; Powell v. Pennsylvania, 127 U. S. 678.

yet a law abrogating or preventing the collection of a tax laid by the authority of a State (unless upon imports and exports) would not be the supreme law of the land, but an usurpation of a power not granted by the Constitution ... The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation except duties on imports and exports."¹

§ 220. In the numbers of the Federalist above referred to, Mr. Hamilton maintains that "this concurrent jurisdiction in the article of taxation is the only admissible substitute for an entire subordination in respect to this branch of power of State authority to that of the Union." He shows that it is impossible to restrict the powers of the Union as to taxation to any prescribed number of subjects, because the needs of the Union might require such unlimited range of taxation, and a like unlimited range must be reserved to the States, except in the matter of duties upon imports and exports. He lays down this proposition: "In the usual progress of things the necessities of a nation in every stage of its existence will be found at least equal to its resources." He argues, therefore, that to stint its resources in the matter of the raising of revenue would be to paralyze its power to perform the duties which were entrusted to it by the Constitution. In order, therefore, to give to each government, as far as possible, the resource of unlimited taxation for the purposes confided to each, it is best to give, with a few exceptions, concurrent jurisdiction to each to an unlimited extent in the matter of subjects of taxation. And so he concludes that no law to raise revenue could be necessary and proper²which would impose a tax in any form prescribed by the Constitution for Congress which would exclude the State from laying an imposition upon the same article, unless prohibited by the Constitution to the State.

This view is finely condensed by Chief Justice Marshall in the case of Gibbons v. Ogden,¹ in the following language:

"Although many of the powers formerly exercised by the States are transferred to the government of the Union, yet the, State governments remain, and constitute a most important part of our system. The power of taxation is indispensable to their existence, and is a power which, in its own nature, is capable of residing in, and being exercised by, different authorities at the same time. We are accustomed to see it placed, for different purposes, in different hands. Taxation is the simple operation of taking small portions from a perpetually accumulating mass, susceptible of almost infinite division; and a power in one to take what is necessary for certain purposes is not, in its nature, incompatible with a power in another to take what is necessary for other purposes. Congress is authorized to lay and collect taxes, etc., to pay the debts, and provide for the common defense and welfare of the United States. This does not interfere with the power of the States to tax for the support of their own governments; nor is the exercise of that power by the States an exercise of any portion of

the power that is granted to the United States. In imposing taxes for State purposes, they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other."²

A question has arisen and been decided that"direct taxes," as used in the Constitution, though in terms to be apportioned among the several States according to their respective numbers,³ and with the negative provision that "no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken,"⁴

¹ 9 Wheat 1, 198-99. ² In accord, Story on the Constitution, secs. 927, 940-43.

may still be laid constitutionally upon the people of the District of Columbia, and upon the people of the Territories of the Union, according to the apportionment referred to. The language, though in terms confined to the States, is taken in connection with the general terms of the power to "lay and collect taxes," etc., as embracing the District of Columbia and Territories within the power of taxation, so as that direct taxes should be apportioned to them according to their numbers, and all other forms of taxation, as "duties, imposts and excises," should be uniform with those laid elsewhere than in the District and in the Territories.¹

§ 221. An important limitation upon the power of Congress to lay and collect taxes, duties, etc., is expressed in these words: "No tax or duty shall be laid on articles exported from any State."² This is a part of the great compromise made between the North and the South, the commercial and the planting States. At that time, as now, a large mass of the exports of the country consisted in the great staples of the South. To have left to Congress the power to tax the staples of the great exporting States of the Union would have enabled the majority in Congress to tax the minority, representing the planting States, to an oppressive extent. Thus, the power to lay duties on the exports, as well as the power to tax the article itself which was designed to be exported, was utterly denied to Congress, as a part of the great compromise.³ The latter part of the clause reads: "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another." This prohibition was directed against any regulation of commerce or revenue which would make a preference between the ports of one State over those of another; as, for instance, between such ports as Norfolk and Baltimore. A preference might be given by some regulation of revenue which

would give such preference; e. g., the test on sugar by the polariscope. The instrument used must be the same in all the States, so that no preference as to revenue shall be given. The same thing is involved in the latter clause. A vessel bound to or from Baltimore, obliged to enter, clear or pay duty at Norfolk, would work great injustice against the one and for the other.¹

§ 222. We come now to a question which has excited great contention. It will be perceived that the clause under consideration has an important clause interposed between the first and last provisions of it, that we have not as yet particularly noticed. The language is, "to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States." The words which we have not yet considered are: "to pay the debts, and provide for the common defense and general welfare of the United States." The question arises, Do these words grant a distinct power, or do they declare only the object of the tax power preceding?

To the first branch of the question we give a negative answer; to the second an affirmative answer, for the following reasons:

1st. The structure of the sentence requires this interpretation. To "pay the debts, and provide for the common defense and general welfare of the United States," if a distinct power from the power to "lay and collect taxes," etc., should not have intervened between the power to lay and collect taxes, etc., and the qualification of that power by the words, "but all duties, etc., shall be uniform," etc. The latter branch of the sentence as a qualification of the first should not have been separated by words which grant a distinct and independent power. Such a framing of the sentence so interpreted would be a vice in grammar of which the pen of Gouverneur Morris should not be held guilty where

any other construction is open. The grammatical construction is vindicated by holding that the words "to pay the debts," etc., do not create an independent power, but only declare the object of the preceding tax power.

2d. To pay debts can hardly be said to be a political power. To lay and collect taxes is a power, and a proper power, where its object is to pay the debts of the government; and, as these words "to pay the debts" are indissolubly connected with the words to "provide for the common defense," etc., it follows that these latter words must share the fate of the words to "pay the debts," and be taken to declare the object of the preceding power and not the creation of a distinct power.

3d. This is confirmed by the report of a committee in the Federal Convention, which proposed to add to the words "to lay and collect taxes," etc., the phrase following: "for payment of the debts and necessary expenses of the United States," etc.¹ Later it was proposed to add to the tax clause, "for the payment of said debts, and for the defraying the expenses that shall be incurred for the common defense and general welfare;" which last, though disagreed to at the time as unnecessary, was incorporated in the clause thereafter, as now found in the Constitution.²

4th. Mr. Madison³ meets the charge that these words contain a grant of unlimited power to provide for the common defense and general welfare, in the following terms:

"Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution on the language in which it is defined. It has been urged and echoed that the power ' to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States,' amounts to an unlimited commission to exerciso every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof

could be given of the distress under which these writers labor for objections than their stooping to such a misconstruction.

"Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ' to raise money for the general welfare.'

"But what color can the objection have when a specification of the objects alluded to by these general terms immediately follows; and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded as to give meaning to every part that will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted if these and all others were meant to be included in the preceding general power? Nothing is more natural and common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing had not its origin with the latter.

"The objection here is the more extraordinary, as it appears that the language used by the convention is a copy

from the Articles of Confederation. The objects of the union among the States, as described in Article III, are, 'their common defense, security of their liberties, and mutual and general welfare.' The terms of Article VIII are still more identical: 'All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be de-frayed out of a common treasury,' etc. A similar language again occurs in Article IX. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation."

5th. The eighth article of the Confederation is in these words: "All charges of war, and all other expenses that shall be incurred for the common defense and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury," etc.

... "The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States," etc. In that instrument the language as to common defense and general welfare clearly conferred no power. It simply sets forth the objects to be provided for by the treasury of the government, which was to be supplied by requisitions upon the several States, and, under the present Constitution, by taxation by the government itself, The mode of raising the revenue is different, but the objects for which it is raised are precisely the same. So we are forced to conclude that the words used in the Articles of

Confederation and transferred to the new Constitution were intended in both to be merely declaratory of the object for which revenue should be raised, and not as the object of raising revenue in the one and a declaration of a distinct power in the other.

6th. What means "common defense?" It is common, not general � the defense of each and all; defense, a duty to each particular State � not generally as to the total area of the States united, but a defense of each. For the Constitution provides: "The United States ... 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."¹ What is "general welfare?" General (not common); welfare of the Union as a totality, not of each State; the welfare of the whole is the function, of the Union; the welfare of each is the function of each. Upon this point the opinion of the writers on this subject is uniform. Judge Story, after asking the question with which this section begins, says:

"If the former be the true interpretation, then it is obvious that, under color of the generality of the words, to ' provide for the common defense and general welfare,' the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, ' to pay the debts, and to provide for the common defense and the general welfare.' "

He says this latter is "supported by reasoning at once solid and impregnable;" that it is as if it read, "the Congress shall have power to lay and collect taxes, etc., in order to pay the debts and to provide, etc.; that is, for the purpose of paying the public debts, and providing for the common defense and general welfare of the United States."² He

quotes the argument by Mr. Jefferson in favor of this construction with strong approbation.¹

§ 223. But this clause was interpreted first, perhaps, by Secretary Hamilton in the Report on Manufactures in 1791. He says, in speaking of these words, "'common defense and general welfare' are not to be construed as a distinct grant of power, but are qualifications of the objects of the taxing power;" and adds, "the terms 'general welfare' were doubtless intended to signify more than was expressed or imported in those which preceded; otherwise numerous exigencies, incident to the affairs of the nation, would have been left without a provision. The phrase is as comprehensive as any that could have been used, because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the general welfare, and because this necessarily embraces a vast variety of particulars which are susceptible neither of specification nor of definition. It is therefore of necessity left to the discretion of the national legislature to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. And there seems no reason for doubt that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, are within the sphere of the national councils, so far as regards an application of money. The only qualification of the generality of the phrase in question which seems to be admissible is this: that the object to which an appropriation of money is to be made must be general and not local, � its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot. No objection ought to arise from this construction from a supposition that it would imply a power to do whatever else should

¹ Story on the Constitution, sec. 926. Accord: Madison's Rep. of 1798-99: Madison's Letter to Stephenson, 4 Madison Papers, 120, 126, 131;

Hare's American Constitutional Law, lecture 15; Miller on the Constitution, 229, note 2.

appear to Congress conducive to the general welfare. A power to appropriate money with this latitude, which is granted in express terms, would not carry a power to do any other thing not authorized in the Constitution, either expressly or by fair implication." This view seems to have been followed in the message of President Monroe, Hay 4, 1S22, on the subject of repairs for the Cumberland road. The doctrine is endorsed by Mr. Madison in an elaborate report in 1798-99, and in a message vetoing the bill for internal improvements on the 3d of March, 1817, the last day of his Presidential service, from which the following extract may be made:

"To refer the power in question to the clause ' to provide for the common defense and general welfare' would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers, which follow the clause, nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation, instead of the defined and limited one, hitherto understood to belong to them, the terms, ' the common defense and general welfare,' embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and the laws of the several States, in all cases not specifically exempted, to be superseded by laws of Congress, it being expressly declared' that the Constitution of the United States, and the laws made in pursuance thereof, shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.' Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participating in guarding the boundary between the legislative powers of the General and the State governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and de-

cision. A restriction of the power ' to provide for the common defense and general welfare' to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of government, money being the ordinary and necessary means of carrying them into execution."

The contestants seem to have agreed upon one point: that to hold the words "to provide for the common defense and general welfare" to be a substantive grant of power, in the face of the subsequent enumeration of specific powers, would be absurd; because the indefinite words would not only enable Congress to exercise the enumerated powers, but discretionary powers without limit, except as Congress might determine what was the "common defense and general welfare." The point of divergence is, that Madison holds the words "common defense and general welfare" as a general description of the objects of the tax power, limited by and commensurate with the objects of the Constitution as defined in the enumerated powers thereafter specified; and that there can be no "common defense and general welfare" intended by the Constitution beyond what Congress has power to create, regulate and control by virtue of the enumerated grants. E contra, Hamilton holds that the words "common defense and general welfare" include two classes of objects. First, those which are within the scope of the subsequently-enumerated grants of power; and second, all other that Congress may deem to be for the "common defense and general welfare."

Both contestants hold that Congress has only the enumerated powers. But Madison holds that Congress can only raise money to carry out the enumerated powers, while Hamilton holds that it may do so not only for these, but for any others that it may deem for the "common defense and general welfare." Hamilton, therefore, as far as money is concerned, thinks the Constitution placed no limits on the objects of its appropriation, except the discretion of Congress as to

what might be brought within the words "common defense and general welfare." Madison thinks the discretion of Congress is confined to these, and that the "common defense and general welfare" must be limited to objects that may be attained by the exercise of the enumerated powers granted by the Constitution to Congress.

It would really seem absurd to impute to the framers of the Constitution a purpose to comprehend objects far beyond the powers it conferred upon the government. It is argued everywhere in the Federalist that power ought to be commensurate with purpose. But this construction, insisted on by Hamilton and his followers, would indicate that the Constitution contemplated the unlimited expenditure of money, to be raised by taxation under governmental power, to carry out objects which were not within the control given, or the powers committed to, Congress. Power and purpose were not commensurate, except that by this construction Congress had unlimited discretion to raise and expend money by taxation, to aid and accomplish purposes and objects that were beyond the power of Congress to effect; which involves the conclusion that the Constitution trusted Congress to spend money for objects which might be regulated and controlled by other governments, but would not trust Congress to create and regulate these objects of appropriation. In other words, Congress cannot make and control a railroad; but it may raise and appropriate money for the benefit of a corporation that is to regulate and control it. Such a construction of the Constitution is anomalous. It gives an unlimited power of raising money, to be expended at the discretion of Congress, upon any and all schemes which Congress might deem for the "common defense and general welfare," although such schemes Congress is not empowered to project or to carry into execution by any power delegated to it.

If, under the tenth amendment of the Constitution, a specific power to do a particular thing is not delegated to the United States by the Constitution, then it is reserved to the States. Such a thing is in no way within the control and di-

rection of the United States. If it be within the words "common defense and general welfare," still, as those words grant no power, Congress cannot exercise it. And yet, despite this, the construction contended for would give to Congress unlimited power to spend any amount of money to carry out a project or scheme clearly and only within the reserved powers of the States. Is it legitimate to give to the power of taxation, which is ordinarily but a means for effecting the purposes of power, the larger function of unlimited discretion in selecting objects not within the delegated power as the recipients of the benefactions of revenue? Is it legitimate thus indirectly to carry into effect an ungranted power � a power which, being ungranted and if not prohibited to the States, is reserved to them? Is not this a usurpation by indirection, through taxation, as flagrant as if it were a bald exercise of the ungranted power? Judge Story says that this construction is conformable to the proposition "to legislate in all cases for the general interests of the Union." But that proposition was never adopted, and was rejected. Is it legitimate, then, to conform the construction of the words "to provide for the common defense and general welfare" to a purpose which was proposed and rejected? It is true that Mr. Hamilton, in his draft of a Constitution, proposed that Congress should have "power to pass all laws whatsoever, subject to the negative hereafter mentioned," and that the President should have power to negative all laws passed in the State by a Governor or President, who shall be appointed by the general Government. Again, in Article VII of his scheme of a Constitution, he proposed that "the Legislature of the United States shall have power to pass all laws which they shall judge necessary to the common defense and general welfare of the Union."¹ But this proposition of Mr. Hamilton was displaced by the provision of the Constitution which clearly enumerated the powers delegated to Congress.

1st. The reasoning of the forty-first number of the Federalist, which, though written by Madison, was presumably sanctioned by Hamilton, and was a contemporaneous argument to remove objections to the ratification of the Constitution, was in its spirit and meaning a refutation of the latter's doctrine.

2d. If Congress can thus by appropriation exercise this power, it would indirectly exercise a power not granted, and since denied to it. If so, what use would there be for the tenth amendment or for article I, section 1, of the Constitution? It is an anomaly to hold that any government can raise money except as a means to execute its own power.¹ Taxation is a great power; but in itself it does nothing except as it is a means for doing that which is within the powers to be carried out by a government. That a government should have this great means to execute the powers of other governments reaches the point of absurdity. Why should government be given the means to execute a power which is denied to it and confided to another? Why give it the power to help another to do what is denied to it? If Congress cannot be trusted with the grant of a power, why give unlimited discretion to Congress to raise money to enable one not entrusted with the power by Congress to perform it? Can such folly be attributed to the framers of the Constitution? It is obvious that the mass of powers which Congress would thus exercise by means of its revenue powers are powers which are reserved to the States; for the powers not delegated to the United States, unless prohibited to the States, are reserved to them. Thus it would follow that the revenue to be expended by Congress under this construction would be expended for the execution of powers which were reserved to the States. The effect then would be, that while Congress is denied the particular power, it could effectually execute the power and invade the domain of State reservation by the expenditure of money; and con-

ditioning the expenditure of money upon the substantial concession of power would, through money, virtually absorb the autonomy of the States and consolidate the whole governmental system into centralism. That Congress cannot, through appropriations under the tax power, include purposes within the reserved powers of the States, is not only clear upon reason, but is distinctly stated by Chief Justice Marshall in Gibbons v. Ogden,¹ in a passage already quoted. He says: "Congress is not empowered to tax for those purposes which are within the exclusive province of the States."

The Chief Justice argues that, though the State and the United States tax the same subject, they exercise diverse powers, because each taxes for the objects confided to it, and neither can tax for the powers confided to the other. And in that connection it was that he used the sentence above quoted. Therefore, though Congress might deem that the exercise of a State power was in a certain sense for the "common defense and general welfare," it could not exercise it, because the purpose was in the exclusive province of the States, and reserved to them, because not delegated to the United States. A very conclusive argument on this point is derivable from the language of the eighth article of confederation, for which this clause is an unquestioned substitute.

That article provides that all expenditures for the common defense and general welfare "shall be defrayed out of a common treasury, which shall be supplied by the several States," etc., and raised by their own system of taxation. This money, so derived to the United States from the several States, is to be devoted to the common defense and general welfare; just as under the tax clause of the Constitution the revenue derived from such taxation is to be applied to the common defense and general welfare. The mode of raising the money is different; the object, to provide for the common defense and general welfare, is the same. What would have been thought of the Congress of the Confederation had it taken the money supplied by the several States

and expended it for State purposes in aid of State education, under the idea that all of these might be considered by Congress as for the common defense and general welfare? That the States should send to Congress their revenue for Congress to send back to them to be expended for State purposes would be a great and absurd anomaly. How, then, can it be supposed that the revenue derived by Congress under the present Constitution can be properly applied to pay for carrying into execution the reserved power of the States? It is true that Judge Story on this point has argued that in practice the Congress of the Confederation did expend money outside of the limits of their powers, but that did not make their action proper or constitutional; and he fails to show any sanction by the States or the people of that period.

§ 225. Under these famous words, then, for what may the revenues of the Federal government be appropriated?

First. To pay the debts of the United States. The proposition was made in the convention that Congress should pay the debts of the individual States incurred for the common defense and general welfare; but that provision was excluded.

Second. To provide for the common defense and general welfare. That is, as has already been explained, not only for

the defense of all but for each State.¹ In the enumerated powers we have all these provided for in the powers of Congress to raise and support armies, to provide and maintain navies, to train and discipline the militia, to call them out to suppress insurrection, to repel invasion and to enforce the laws; and the duty of defending each State against invasion and against domestic violence.

Third. As to the general welfare. This is provided for by the powers over commerce, the coinage of money, the

establishment of courts, etc. And the appropriation of money to each and all of these is clearly constitutional.

Even by the Hamiltonian construction the appropriation of money for local benefit, and for purposes confined to in-

dividual States and communities, would not be for the general welfare. His theory imposes the word "general" as a limitation upon the otherwise unlimited discretion of Congress; and such a limitation is valuable as far as it goes, but the limitation we insist upon goes further. Nothing is to be provided for by appropriation of money which is not to conduce to the common defense and general welfare of all, as especially provided for by the delegation of the enumerated powers to Congress.

Another view may be presented. If the United States, with a view to promote the common defense and general welfare, under the construction we are now considering, should use the power of another, whether that other be a man, corporation, municipal or otherwise, or a State government, to accomplish any purpose not within the enumerated powers, and furnish the means in money to that other to do so, does not the United States thus exercise through that other the ungranted power? Qui facit per alium, facit per se. If Congress furnishes the means essential to the exercise of that power by such other, is it not sophistry to say it does not exercise the power?

All admit that to infer for Congress the unenumerated power to do a thing that Congress may in its discretion deem to be for the common defense and general welfare is out of the question. For such a construction, Judge Story says, would be to charge the authors of the Constitution "either with premeditated folly or premeditated fraud." How can the exercise by Congress of an unenumerated power, by furnishing the means in money to a person, corporation or State (which is the sine qua non to its exercise),

be held to be anything but a usurpation of power? It could be justified only by the exercise of the ungranted power through another as agent by an appropriation of money unlimited except by the discretion of Congress � a discretion, that even the judiciary cannot call in question.

This view is confirmed when it is considered that Congress may appropriate the money to the scheme with or

without the reservation of power to supervise and intervene to see that the means are properly applied. But if appropriated without such reservation, then Congress would give away its discretion to another, to use the money so appropriated for the common defense and general welfare as that other might determine. This would be an unconstitutional abandonment of duty and breach of trust. If, on the other hand, Congress should reserve the power to supervise and intervene, then, to that extent, the government would in fact be exercising a denied and unenumerated power. In other words, it is inconceivable how government can appropriates money to aid the exercise of an ungranted power by any other than itself without a breach of trust, unless it directly exercises the power itself, or indirectly in effect by the supervision and control of its use by the agent holding the power. It is a political anomaly to hold that the Constitution delegated to Congress the power to delegate to any other than itself the control of money to be used to promote the general welfare. For Congress to do so would be to abdicate its political power and to violate its trust duty. On the other hand, to use the public money as a means to the exercise of an ungranted power by controlling its use would be in reality to exercise a power which has been denied to it by the Constitution. It is surprising how this sophistical device has been upheld by learned commentators, for it is obvious that, by such construction of the Constitution, Congress may range with no limit but its discretion through the realms of reserved and ungranted powers by means of a clause to tax ad libitum and appropriate at will the money of the people to the promotion of anything through other agencies than its own and to the accomplishment of anything it may deem to be for the common defense and general welfare; for this, in effect, is worse than if the words "to provide for the common defense and general welfare" were held to grant the unlimited power claimed, as it incites to profuse expenditure and excessive taxation as the only avenue to the unlimited usurpation of ungranted powers.

How vain and foolish is Madison's argument in the forty-first number of the Federalist, which denies power under the words "common defense and general welfare," if it only means to deny those powers when they do not need money to execute them, but admits the unlimited grant of power if to be made effectual by the appropriation of money? This argument was used to reconcile the people to the ratification of the Constitution by showing that these words did not grant to Congress power only limited by the discretion of that body. But if in expressing this meaning he suppressed the meaning now asserted by this construction, that Congress had such unlimited powers to be exercised through unlimited expenditure, the effect of the express argument and this suppressed construction would fix upon the writers of the Federalist, in the language of Judge Story, "premeditated folly or premeditated fraud." Mr. Madison has again and again repudiated any such construction. Why should the interpreters of the Constitution give it a meaning which would make the argument used by Mr. Madison a fraud upon the people?¹

§ 226. The original argument of Mr. Madison is as we have seen it in the forty-first number of the Federalist, and is not potential merely as the authority of a great man who was a member of the Federal convention which framed the Constitution, as well as of the Virginia convention which ratified it, but because it was the accepted construction by the writers of the Federalist, of whom Mr. Hamilton was one, in which this argument was used to remove the fears of the people that the Constitution might be so construed as to give unlimited discretion under the use of the words "to provide for the common defense and general welfare." He speaks of the construction of those words made by the opponents of the Constitution as "stooping to such a misconstruction," and adds: "Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the

authors of the objection might have had some color for it; though it would have been difficult to find a reason for so

awkward a form of describing authority to legislate in all possible cases.... But what color can the objection have when a specification of the objects alluded to by these general terms immediately follows; and is not even separated by a longer pause than a semi-colon? ... Shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the mere doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if they and all others were meant to be included in the preceding general power?" This language is as pertinent to show that the general terms "common defense and general welfare" were defined and limited by the subsequent enumeration of powers, when those words merely declare the objects of the taxing power, as if they had been the expression of a distinct and independent power.

He then proceeds to show that these words were taken from the Articles of Confederation, and that the objectors to their use in the Constitution would never have given such an extensive interpretation to those words in the Articles of Confederation as they proposed to attribute to them in the Constitution. And if so, he says: "How difficult it is for error to escape its own condemnation!"

For in the Articles of Confederation those words were strictly limited by express grants, because powers not expressly granted to the United States by those articles were reserved to the States. These words when put into the Constitution, therefore, on which, a few years after, the tenth amendment was engrafted, made it impossible to give to these general terms the unlimited meaning which by this construction was attributed to them, in the face of the specific enumeration of powers just succeeding. The powers enumerated were all with a view to the "common defense and general welfare," and were parts of the sentence which em-

braced the whole of the eighth section of the first article. Upon what rational ground, then, can the general terms defining the objects of a power be stretched beyond the objects indicated in the enumerated powers granted by that section. Mr. Madison, in his veto message, makes this important statement: "Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision." In other words, the unlimited discretion of Congress would leave to their judgment the exercise of any power through the appropriation of money which Congress deemed to be for the common defense and general welfare; and such action would be beyond judicial decision that it was unconstitutional. Judge Story attempts to sustain his view by reference to the proceedings of the convention, but without success. Let us refer briefly to these.

§ 227. The first scheme of a Constitution was proposed by Mr. Randolph in the form of resolutions. The first resolution was that "the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution; namely, 'common defense, security of liberty and general welfare.'"¹ These resolutions, after debate, were referred to a committee. The form in which the resolution as to the power of Congress was referred was, "That the National Legislature ought to possess the legislative rights vested in Congress by the Confederation; and moreover, to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation."²

referred to them contained the proposition as to taxation as it had been proposed in Mr. Pinckney's plan, in these words: "The Legislature of the United States shall have the

power to lay and collect taxes, duties, imposts and excises.''¹Livingston made a report in reference to the duties of the several States, that "The Legislature of the United States shall have power to fulfill the engagements which have been entered into by Congress, and to discharge, as well the debts of the United States, as the debts incurred by the several States, during the late war, for the common defense and general welfare."²

Subsequently Mr. Morris proposed as a substitute for the proposition as to engagements, etc., which was adopted, the following: "The Legislature shall discharge the debts and fulfill the engagements of the United States."³ Subsequently the power to lay and collect taxes was amended so as to read: '' The Legislature shall fulfill the engagements and discharge the debts of the United States; and shall have the power to lay and collect taxes, duties, imposts and excises."⁴ This was agreed to, but afterwards reconsidered.⁵ Upon reconsideration it was moved to postpone this clause in favor of the following: "All debts contracted and engagements entered into by or under authority of Congress shall be as valid against the United States under this Constitution as under the Confederation."⁶ This was adopted by a large majority, and is substantially what is in the present Constitution as adopted.⁷ Mr. Sherman proposed to modify the provision as to laying taxes by adding: "For the payment of said debts, and for the defraying the expenses that shall be incurred for the common defense and general welfare." His proposition was disagreed to as being unnecessary.⁸ But afterwards, in the report of Mr. Brearly, the provision was reported in this form: "The legislature shall have power to

lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States," � substantially Mr. Sherman's proposition which had been disagreed to. This was adopted nem. con.¹

§ 228. This is all that appears upon the records as detailed by Mr. Madison of the proceedings of the convention. The whole record gives no ground for the conclusion stated by Judge Story, that "it conformed to the spirit of that resolution of the convention which authorized Congress to ' legislate in all cases for the general interests of the Union.'"² So far is this from being true, the resolution that Congress should legislate in all cases for the general interests of the Union, though informally offered, was never finally adopted by the convention. So far from it, the proposition of Mr. Hamilton, already referred to, and which was substantially that stated by Judge Story, was never even voted upon, but was merely suggested by him and never regularly proposed. The record, if it proves anything, proves only what we have contended for, that the words "to pay the debts," as one of the objects of the power of taxation, were associated with the words "to provide for the common defense and general welfare," used in the Articles of Confederation under which those debts had been contracted, as indicating that the constitutional limitations under both instruments of the objects defined in the words "common defense and general welfare" were those which were indicated by the granted and enumerated powers delegated to Congress.

§ 229. We have been thus full in respect to this celebrated theory of Mr. Hamilton, that while Congress cannot claim unlimited discretion in the exercise of powers which it may choose to consider for the common defense and general welfare, yet it may do so as to the objects of the appropriation, because this theory has of late years assumed dangerous prominence in the administration of the Federal govern-

ment. The government is induced to enlarge its taxation in order to accomplish the objects which, by loose construction, are embraced in these celebrated words.

The canon of Judge Marshall is often referred to: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are clearly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional." This makes the constitutionality of an appropriation depend upon whether the object and end is legitimate and within the scope of the Constitution. The appropriation of money may be held to be the chief and legitimate means by which every government carries its powers into practical effect. It would seem to be a sound principle that if the government can use the money it raises by taxation or otherwise only for the purpose of executing the powers vested in it, to use it for other purposes would not be legitimate. If government be a trustee delegated with power to raise money from its people, and to exercise powers for their use, the conclusion is inevitable that it is a breach of trust, contrary to the spirit if not the letter of its charter, to spend the money of its people for ends other than those designated in the Constitution.

This general principle, applicable to all governments as sound and just, must be applied to the Federal Congress, which by universal admission and judicial decision is a government of limited powers � limited by the Constitution and those which are granted to it. "The government, then, of the United States can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given or given by necessary implication."¹

§ 230. These general views confirm the soundness of the construction given to the clause of the Constitution we have been considering. To speak of the government as a government of granted powers, and yet to hold that its greatest ¹ Martin v. Hunter, 1 Wheat. 304, 326.

power, that of unlimited taxation, can be applied to the execution of powers not granted nor enumerated in the Constitution, but to such objects as Congress may deem to be for the common defense and general welfare, would make it substantially a government of unlimited powers. It is well said by Mr. Justice Miller: "Of all the powers conferred upon government, that of taxation is the most liable to abuse. Given a purpose or object for which taxation may be lawfully used, and the extent of its exercise is in its very nature unlimited."¹

The theory of construction which we are combating involves the historic conclusion that the States, which were jealously guarding their reserved powers by expressly enumerating the powers delegated to the Federal government, agreed under this power of taxation, in the face of its liability to abuse by exercise for objects and purposes which were ungranted, that Congress might nevertheless, at its discretion, assume and execute them through the power of appropriation. It is absurd to suppose that such was the purpose of the States which framed the Constitution. It is not surprising that the ingenious and inventive intellect of Mr. Hamilton, who had been defeated in the convention in all his efforts to grant unlimited power to Congress, should have been led to adopt an interpretation of this clause of the Constitution which in effect would accomplish the object in which he was foiled in the convention. He favored a strong government with large powers, believing it to be essential to the success of the system; and naturally, with his bold and ardent temperament, sought to establish a policy which the terms of the Constitution did not authorize, by a strained, and, as we have shown, an improper interpretation of this taxation clause.

§ 231. It only remains to say that the construction we insist on is fully sanctioned by the fact that the powers enumerated in the Constitution² provided means for the defense

of all and each of the States of the Union fully and definitely; for the establishment and organization of the executive and judicial departments of the government; for the regulation of commerce, coinage of money, postal establishment, and treaties with foreign powers, � all of which are dependent upon the taxing power, and are comprehended within the words "common defense and general welfare." The construction here insisted on, therefore, gives full force and meaning to all the powers of the government which may need the appropriation of money; but allows no appropriation of money beyond the prescribed powers in the terms of the Constitution. This construction, which thus gives full effect to Federal power, and to all which the Constitution intends and embraces under the terms "common defense and general welfare," only checks that power which may be assumed upon the mere discretion of the legislative body. This is essential to avoid centralism and to preserve in its integrity the autonomy of the States.

It is proper to add that Hamilton and his followers attached to his theory the qualification that though Congress may appropriate money for what it deems the general welfare, though not within the enumerated powers, the word general makes a limitation upon the power which excludes all appropriations for what is special or local, and not genoral throughout the Union. But the practical effect of the rule has been to include special and local objects within the word, when many such special things in many localities may together be deemed for the general welfare, in accordance with the idea that many particular welfares may be held to be a general welfare. And it further may be assumed that the Hamiltonian view would differentiate private and public benefit as a line of demarcation between special and general welfare. For these private benefactions would, a fortiori, not be for the general welfare, unless we are prepared to adopt paternalism simple and pure, and hold general welfare to mean an infinite number of special welfares.

§ 232. Let us now consider some of the forms in which this question has presented itself.

1st. Can bounties on products be paid, in the form of appropriations, to aid one or more of the interests of private persons? Does the fact that such industries aid partially the general welfare justify the public aid through taxation to mere personal industries? Is it proper to make appropriations for the unfortunate victims of overflows, fire, grasshoppers, and the like, in order to promote the general welfare? Does help by public money to individuals who may need it elevate such a case to the promotion of the general welfare? Do a number of such particular cases constitute general welfare? If so, how many such is required to make it general. Some one says that the general welfare is made up of the welfare of private individuals; but are not these appropriations for private benefit the principal object, while the public welfare is merely the incident?

Let us examine this question in the light of judicial authority. In Fletcher v. Peck^l Chief Justice Marshall said: "It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power. And if any be prescribed, where are they to be

found, if the property of an individual fairly and honestly acquired may be seized without compensation." And Chief Justice Chase adds in the Legal Tender Cases,² "And if the property of an individual cannot be transferred to the public, how much less to another individual." In accord with these declarations, the late Mr. Justice Miller, in Loan Ass'n v. Topeka,³ speaks with great force in these words:

"The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative and the judicial branches of these governments are all of limited and defined powers. There are limitations on such powers which grow out of the essential nature of all free governments; implied reservation of

individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A and B, who were husband and wife to each other, should be so no longer, but that A should thereafter be the husband of C, and B the wife of D. Or which should enact that the homestead now owned by A should no longer be his, but should henceforth be the property of B.

"Of all the powers conferred upon government, that of taxation is the most liable to abuse. Given a purpose or object for which taxation may be lawfully used, and the extent of its exercise is in its very nature unlimited. It is true that express limitation on the amount of tax to be levied or the

things to be taxed may be imposed by constitution or statute, but in most instances for which taxes are levied, as the support of government, the prosecution of war, the national defense, any limitation is unsafe. The entire resources of the people would in some instances be at the disposal of the government.

"The power to tax is therefore the strongest, the most pervading, of all the powers of government, reaching directly or indirectly to all classes of the people. It was said by Chief Justice Marshall in the case of McCulloch v. State of Maryland, 4 Wheat. 431, that the power to tax is the power to destroy. A striking instance of the truth of the proposition is seen in the fact that the existing tax of ten per cent., imposed by the United States on the circulation of all other banks than the national banks, drove out of existence every State bank of circulation within a year or two after its passage. This power can as readily be employed against one class of individuals and in favor of another, so as to ruin the one class and give unlimited wealth and prosperity to the other, if there is no implied limitation of the uses for which the power may be exercised.

"To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it

upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.

"Nor is it taxation. A ' tax,' says Webster's Dictionary, ' is a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or state.' ' Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes.'

"Coulter, J., in Northern Liberties v. St. John's Church, 13 Pa. St. 104, says very forcibly: 'I think the common mind has everywhere taken in the understanding that taxes are a public imposition, levied by authority of the government for the purpose of carrying on the government in all its machinery and operations � that they are imposed for a public purpose.'

"We have established, we think beyond cavil, that there can be no lawful tax which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense and what is not.

"It is undoubtedly the duty of the legislature which imposes or authorizes municipalities to impose a tax to see that it is not to be used for purposes of private interest instead of a public use, and the courts can only be justified in interposing when a violation of this principle is clear and the reason for interfering is cogent." ... "But in the case before us, in which the towns are authorized to contribute aid by way of taxation to any class of manufacturers, there is no difficulty in holding that this is not such a public purpose as we have been considering. If it be said that a benefit results to the local public of a town by establishing manufactures, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner, are equally promoters of the public good,

and equally deserving the aid of the citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the public treasury to the importunities of two-thirds of the business men of the city or town."

§ 233. Several cases are cited by the justice in illustration of this. A town meeting voted the town's credit to the amount of ten thousand dollars to certain individuals if they would invest twelve thousand dollars in certain mills, etc., to be built in that town by them. Provision was made to secure the town by mortgage on the mills. The Supreme Court of Maine held that this was not a public purpose, and the town could levy no taxes in aid of the enterprise, and could issue no bonds for the purpose, though an act of the legislature had ratified the vote of the town.¹ The disastrous fire in Boston in 1872 gave rise to the passage of a law by the legislature of Massachusetts which authorized

the city to issue its bonds which were to be loaned under proper security by the city to owners of the ground on which the buildings had been destroyed by fire, to aid them in rebuilding. The court held the law unconstitutional as authorizing taxation for what was not a public purpose.²

These decisions of the States, sanctioned by the high authority of the Supreme Court in reference to the limitations upon State power, are, a fortiori, applicable in principle to the limited and enumerated powers of the Federal government. Besides, the fifth amendment of the Constitution, which vested Congress with the power to take private property for public use upon just compensation, involves the negation of power to take private property for private use without compensation. Judge Cooley³ takes the same view, and cites a case where a tax was laid to supply with provisions and seed

² Lowell v. Boston, 111 Mass. 484 See also Jenkins v. Saunders, 103 Mass. 74; Curtis v. Whipple, 24 Wis.

§ 234. A question has of late years arisen as to the power of Congress to appropriate money to aid public schools in the States. And it is sought to sustain it on the ground that, though the appropriation to each State is a local benefit, yet an appropriation to all the States would make a general welfare. It is conceded that the government itself could not establish an educational institution in the State, that being a

power reserved to the State itself. About this there would seem to be no doubt. And yet under the general welfare clause, while not claiming to exercise the power, yet it is claimed to be within the Hamiltonian doctrine for the appropriation of money. It is too obvious to escape observation that the appropriation of money must be followed, as was proposed, with some supervision over its expenditure, and as to the system of education to be pursued. Indeed it is dear that Congress ought not to appropriate money for a useless system of education; and if Congress intervenes as to the system, because of the appropriation of money for the purpose, it would be claiming in some degree the right to exercise the denied power � denied to Congress, and reserved exclusively to the States. In such a case the language of Chief Justice Marshall in Gibbons v. Ogden² is applicable: "Congress is not empowered to tax for those purposes which are within the exclusive province of the States."

§ 235. 2d. Can the tax power be used for other than revenue purposes? It has thus far been shown that both schools of construction hold it to be a revenue power � a power granted to raise revenue; and the divergence of opinion has been on the question of the power of appropriation. We come now to consider the question whether this power of taxation for revenue purposes can be used, not to raise revenue, but, by pretending to raise revenue from a particular subject of taxation, to lay a prohibitory duty upon that

A protective duty on an article may be differentiated from a revenue duty by this course of reasoning. The revenue raised by a duty on article A is a result of two factors � the rate of taxation and the amount imported. The formula may be thus stated: R (revenue) = D (duty) x I (import). As the duty increases, the import will decrease, because the increase of price will decrease consumption. When the duty is nothing, the revenue will be nothing, however great the importation. When the importation is nothing, the revenue will be nothing, however great the duty. And as importation falls off with the increase of the rate of duty (until the duty becomes prohibitory), by so increasing the price of the import as to prevent any consumption, it follows that between the point of no duty and the prohibitory rate there will be an ascending scale of revenue to a maximum point of revenue, and a descending scale of revenue from that maximum to the point of prohibition. So that on either side of that duty which raises the maximum revenue on any article, there will be a lower and a higher duty which will raise the same amount of revenue.

Therefore, as no higher duty ought to be laid than is needed to raise the requisite revenue on a particular article, it follows that the true revenue duty is the lowest duty which will bring the required revenue. To lay the higher duty to raise the required revenue, instead of the lower, which will achieve the same result, is an oppressive violation of right, in making the burdens heavier than the needs of the government require for its support. Such higher duty is not a revenue measure, but is a needless limitation on consumption, oppressive to the citizen, and an improper restriction upon freedom of commerce. In other words, the lowest rates of duty which will secure the required revenue may be termed a revenue tariff; the highest rates securing the same will be a protective tariff. The former enlarges consumption, the latter diminishes it, and both bring the

same amount of revenue. The one decreases the comforts of the people by decreasing ability to consume; the other increases their comforts by enlarging their capacity of consumption. If the power to lay and collect duties be, as its terms import, a power to raise revenue, and Congress can only pass laws necessary and proper to raise revenue required from that article, then it is clear that it is neither necessary nor proper, but the reverse, to lay the higher duty on the article rather than the lower duty, when both produce the same revenue.

But is there a power to lay the higher duty rather than the lower, because thereby a class in the community who are manufacturing the product which is being imported subject to the duty is encouraged and benefited? The difference between the lower duty and the higher duty, both of which produce the same revenue, is the measure of taxation laid upon the consumer, not for the purpose of revenue, but for the purpose of giving to the domestic producer to that extent the advantage over his foreign competitor. It is additional taxation laid upon the citizen, not to furnish revenue to the government, but to give a benefit and advantage to the domestic producer of the article. Can such legislation be justified under the revenue power? Is that the exercise of the power of taxation to raise money to pay the debts and provide for the common defense and general welfare?

It is obvious it cannot be, for the same revenue would be raised by the lower duty. We are forced to conclude, therefore, that that duty was laid for the private benefit of the producer of the domestic article.

§ 236. It is said that this is not the appropriation of money out of the treasury for private benefaction; but it cannot be denied that it is a burden laid upon a large class of consumers for the benefit of a special class of producers. If a municipality, as we have seen, cannot tax the people to call into existence or to encourage a class of existing manufactures, can the Federal power of taxation be used for any such purpose under the pretext that it is for the general welfare?

It is a general welfare in the sense of being a particular benefit to one class; but where is the general welfare when that is done at the expense of another? And if it shall be said that the duty in such cases, if collected, does not go to the manufacturer, we answer, but the process is that the consumer pays the additional price for the domestic article by reason of the prohibitory duty on the foreign one, by which the tax imposed, though never collected by the government, realty is transferred directly to the manufacturer. So that in either event it is the use of the power of the government by taxation to transfer property from A to the benefit of B.

The cases already cited are clear demonstrations of the unconstitutionality of such a direct process; but shall the indirection in the use of the power save the government that so uses it from condemnation as a perverter, if not usurper, of power by so using it as to tax one man for the benefit of another? Does it not, in the potent language of Justice Miller, "lay one hand on the property of the citizen, and with the other bestow it on favored individuals to aid private enterprise and build up private fortunes;" and is it "Any the less robbery because it is done under the forms of law, and is called taxation?"

That such legislation is inappropriate according to the meaning of the terms "necessary and proper" is obvious from the fact that it is contrary to a fundamental principle of our American institutions, and in fact to the express language of the fifth amendment of the Constitution of the United States. The eminent domain of a government consists in its power, through taxation or enforced condemnation, to take the property of the citizen for public use. In the fifth amendment it is provided: "Nor shall private property be taken for public use without just compensation." The owner of the property may, through the public use, share in the benefit of its dedication to the public; but he must be fully compensated for the taking of his property, in the loss of which the public does not share. The public

may buy his private property, which is alike valuable to him with all his other fellow-citizens. This language involves the affirmation that private property may be taken for public use upon just compensation; but it involves an absolute negation that private property shall be taken for private use, with or without compensation.

§ 237. What is a protective duty? It takes the private property of the consumer by taxation, or through the device of prohibitory duties, and gives it to the producer. This is taking the private property of the consumer for private use, and does not even give him compensation. So that if it be unconstitutional to take private property for public use without compensation, a fortiori is it the height of unconstitutionality to take the private property of one man for the private use and benefit of another without any compensation at all. It is therefore inappropriate, and the law which lays such a duty is neither necessary nor proper to carry out the granted power, but is the exercise of a despotic authority to seize the property of the citizen and dedicate it to the use of another without any compensation to the party who is robbed. In the language already quoted, '' This is none the less robbery because it is done under the forms of law, and is called taxation." Taxation for revenue only is therefore the foundation of all true liberty. Taxation perverted from this purpose to the object of protection to any class, directly or indirectly, is not only unauthorized by the Constitution, but is a violation of right and justice, and of the fundamental principles and very life of the Constitution itself.

These views, though not sanctioned by all the public writers upon this subject, have the sanction of one of the most eminent among them. Judge Cooley says:¹ "Constitutionally a tax can have no other basis than the raising of revenue for public purposes, and whatever governmental exaction has not this basis is tyrannical and unlawful. A tax on imports, therefore, the purpose of which is not to raise

revenue, but to discourage and indirectly prohibit some particular import for the benefit of some home manufacture, may well be questioned as being merely colorable, and therefore not warranted by constitutional principles."

He says that as it is a duty from which revenue may be derived, the judicial power, where the motive of laying does not appear on the face of the act, cannot condemn it as being unconstitutional; but it is none the less a violation of the Constitution by the legislator who knows its object and levies the duty from a motive not justified by the Constitution. It may be added that when the protection of private enterprise is not through the agency of protective duties, but assumes the bolder form of taxation to put money into the treasury for appropriation to the payment of bounties for private enterprise, the features of unconstitutionality of which Judge Miller speaks are obvious on the very face of the law; and that such appropriation for private enterprise of public money obtained by public taxation is "none the less robbery because it is done under the forms of law, and is called appropriation."^l

§ 238. 3d. When this tax power is used not for revenue purposes, not in laying a tax in order to collection, but to lay the tax, as Chief Justice Marshall says, "to destroy" the subject, it brings up a class of questions which have found illustration in the acts of Congress in the last twenty years. This is the idea that the unlimited power of Congress to tax any and every subject of taxation at its discretion may be used when no revenue is needed, by bearing so heavily upon the product of industry or upon the article of property in the possession of a citizen that his industry will be a loss to him if prosecuted, and his property substantially confiscated. Is such an exercise of the power of taxation constitutional? If it is a power given to raise money to pay the debts, and provide for the common defense and general

¹ The case of Gay v. United States, 163 U. S. 427, does not directly determine this question, and

welfare, is it a legitimate exercise of the power to lay a tax which cannot be collected, and was never intended to be collected, which destroys the subject of taxation, which subject of taxation is beyond the control of the United States, and is under the reserved and exclusive control and protection of the States?

The Supreme Court has decided in United States v. Dewitt,¹ that an act of Congress making it criminal for a citizen to mix for sale, etc., certain explosives was unconstitutional. Chief Justice Chase said: "The questions certified resolve themselves into this: Has Congress power under the Constitution to prohibit trade within the limits of a State?

... Standing by itself it is plainly a regulation of police." He adds: "As a police regulation, relating exclusively to the internal trade of the States, it can only have effect where the legislative authority of Congress excludes, territorially, all State legislation, as, for example, in the District of Columbia. Within State limits it can have no constitutional operation. This has been so frequently declared by this court, results so obviously from the terms of the Constitution, and has been so fully explained and supported on former occasions, that we think it unnecessary to enter again upon the discussion."

The question then confronts us, if Congress cannot by direct action constitutionally put down and prevent the sale of an article in a State, can it by the indirection of the taxing power seek to destroy what the Constitution prohibits it to touch? It may therefore be held as settled, that if Congress cannot destroy any industry or business or property in a State which is within the exclusive province of the State, it cannot use the power of taxation vested in it for the purpose of raising revenue to pay the debts, etc. � to do that which it has no power to do otherwise.

In other words, it cannot pervert the use of a power given for one purpose into an instrument for accomplishing another purpose which is expressly denied to it. It cannot do

by indirection what under the Constitution it has no power to do by direct means.

§ 239. A few additional remarks may be proper in respect to the general powers of the government in the matter of taxation and appropriation.

1st. The advantage the government has in the usurpation of power in taxation is that the people are reconciled to it because it is done by indirect taxation, while the States have to raise their revenue by direct taxation.

2d. The mistake that the framers of the Constitution made in the matter of direct taxes lay in apportioning them according to the population, and the inequality of such tax at this time.

3d. Our system of permanent tax laws, to which George Mason objected very earnestly in the convention, which fastens upon the country a system of taxation permanent until it can be repealed, really destroys the relation between taxation and representation. In England it is not so. Any tax which is offensive to the people to-day may be repealed by the House of Commons to-morrow.

4th. Judge Story says that except this clause there is no power to appropriate money given anywhere in the Constitution. So far from it, the co-efficient power¹ does it all. This is apparent; for the power to lay and collect taxes, pay the debts and provide for the common defense and genera! welfare, when restricted to those objects as prescribed by the enumerated powers, includes not only the appropriation of money, as defined in the enumerated powers, but in the

laws which Congress may pass which are necessary and proper to carry into execution the enumerated powers, and all other powers vested in the government, or in any department or officer thereof. This involves the right to pass all laws for the appropriation of money for raising armies and navies; for carrying on war; for defending each State against invasion; for the postal establishment; for the government of the District of Columbia and the Territories; for the establishment of courts and the payment of judges and judi-

cial expenses; appropriations for the executive department and all its officers, from the President down, � these are all for the common defense and general welfare, and appropriations for all of these are included in the laws which are necessary and proper for carrying the whole government machinery into full effect.

§ 240. It is a question of grave doubt whether the Constitution, in apportioning direct taxation to population, did not commit a grave error, which in the present condition of the country might lead to gross injustice. Judge Story, in his work,¹ has commented upon this. The question was very much discussed in the Continental Congress before the adoption of the Articles of Confederation.² The rule of apportionment adopted by the Articles of Confederation was "in proportion to the value of all land within each State granted to or surveyed for any person, as such land, and the buildings and improvements thereon, shall be estimated according to such mode as the United States in Congress assembled shall from time to time direct and appoint."³ The Constitution, as we have seen, apportioned it according to population. It was thought that either of these would approximate a just basis of apportionment, and perhaps at the time of the adoption of the Constitution population was a just basis � certainly in reference to capitation taxes. But to hold that capacity to pay taxes is in proportion to population at the present day is absurd.

By the last census the true valuation of property per capita ranges from $348 in South Carolina to $3,941 in Nevada. If, therefore, each person by direct taxation is to pay the same amount of taxes, then the South Carolinian will pay on $348 of property the same amount of taxes as a citizen of Nevada will pay on $3,941 worth. In other words, the citizen of South Carolina will pay ten times the rate of tax that the citizen of Nevada does.⁴ New York has ten times as much

property as Virginia, yet under this system would only pay three and a half times as much tax. Massachusetts, with a little more than three times the property, would pay the same tax. This would be grossly unequal. It is really taxing men by the poll without regard to the property. And if the new construction of the Constitution as to the subjects embraced within direct taxes on all the subjects of real and personal property be upheld, this disparity of burden would be most unjust. The only relief from this inequality is to restrain direct taxes within a narrow range of subjects and so extend the range of subjects embraced in the requisition that such subjects shall be taxed uniformly.

In the Federal Convention one man only, George Mason, seemed to have feared and sought to prevent the danger of a perpetual revenue, which he said "must of necessity subvert the liberty of any country."^l Mr. Rutledge from his committee reported favorably a clause "that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall

appear that this proposition was ever voted on; but it finds no place in the Constitution. The consequence of this is, that whereas the House of Representatives was given the initiative power in respect of taxation, because it is especially the representative of the taxpayers, yet by providing a permanent revenue law it became unable to inaugurate any system of revenue which it could hope to pass, as a change in the permanent system of taxation, unless it has the concurrence of the Senate and the President. The consequence has been that, whether right or wrong, the efforts of the House of Representatives in the last twenty-five years have been thwarted by the non-concurrence in their bills for raising revenue by the other branches of the government.

§ 241. On the other hand, a revenue bill, if it expired by limitation, would have to be again originated in the House, and passed in order to raise revenue. This would

make the taxation of one generation by another absolutely impossible. The present system of permanent revenue bills makes the taxation of a former generation without the consent of the people to be taxed permanently oppressive, unless the three departments of the government concur in overthrowing it. The three departments ought really to concur and be required so to do in reference to any taxation of the people. The checks and balances which were intended to be provided against unjust taxation by a system of permanent revenue are checks and balances against the overthrow of a bad system of raising revenue. Thus oppression is protected against change instead of liberty.

In this respect how different is the operation of the British system. If the House of Commons desires a change in any tax upon any article, it has only so to declare and all the governmental machinery yields to its single and undisputed will. With us the House that is the representative of the taxpayers may be thwarted for generations in its effort to remove an unjust tax by the opposition of the Senate or the President, and the unjust tax can only be removed when all three concur in a law to do so. This evil does not inhere in the Constitution itself, but in the practice of the government under it. And the answer is always made against any proposition to change the system of taxation that it will disturb the business of the country. So much the more reprehensible is any system of taxation that is based upon a principle which so entangles the business of the country with the revenue policy of the government as that unjust taxation may be permitted to be permanent, lest it shall disturb the business of individuals whose interests are allied to taxation.

These considerations suggest a better line of policy, which will divorce governmental exactions from the business of the people in so far as it is possible, and then the government will be free to lift the burdens of taxation from the people without injuring the business of any.

of terms used may be taken by the courts as a guide to their meaning. Where those commercial designations are the

result of established usage in commerce, definite, uniform and general, then this rule prevails; but not if only partial and local. See Sonn v. Magone,¹ affirming Maddock v. Magone.² The cases on this subject are too numerous for citation, but we may refer to a few.³

Secretary of the Treasury and the Judiciary might lay a tax which it is only competent for Congress to lay.⁴

§ 242. In the ninth article of the Confederation power was given to Congress "to borrow money or emit bills on the

credit of the United States, transmitting every half year to the respective States, an account of the sums of money so borrowed or emitted." In the scheme of a Constitution presented by Mr. Pinckney this proposition took this form : "To borrow money and emit bills of credit."⁵ In the draft reported by Mr. Rutledge from the Committee of Detail, it stood thus: "To borrow money and emit bills on the credit of the United States."⁶ When this clause came up Gouverneur Morris moved to strike out "and emit bills on the credit of the United States."⁷

³ Tyng v. Grinnell, 92 U. S. 467; Arthur v. Morrison, 96 id. 108; Swan v. Arthur, 103 id. 598; Newman v. Arthur, 109 id. l32; Schmieder v. Barney, 113 id. 615; Marvel v. Merritt, 116 id. 11; Worthington v. Robbins, l39 id. 337: Nix v. Heden, 149 id. 304; Magone v. Heller, 150 id. 70; Cadwalader v. Zeh,

154 id. 171; Saltonstall v. Wiebusch, 156 id. 601; Patton v. United States, 159 id. 500.

496; Hartranft v. Wiegmann, 121 U. S. 609; American Net & Twine Co. v. Worthington. 141 id. 468; Gurr v. Seudds, 11 Exch. 190.

Mr. Madison asked: "Will it not be sufficient to prohibit the making them a tender?" Mr. Morris replied: "The moneyed interest will oppose the plan of government if paper emissions be not prohibited." Mr. Gorham was for striking out the words, and said: "The power as far as it will be necessary or safe is involved in that of borrowing." Mr. Ellsworth thought this was a favorable moment to bar the doors against paper money. Mr. Wilson thought it best to remove the possibility of paper money. Mr. Read thought the words, if not struck out, would be as alarming as the "mark of the beast in Revelation." On the vote for striking out, nine States vote aye, two States no.¹ And a note of Mr. Madison states: "The affirmative vote of Virginia was occasioned by the acquiescence of Mr. Madison, who became satisfied that striking out the words 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 for either public or private debts."²

§ 243. This debate shows that money may be borrowed by bonds or bills of credit, for each is evidence of borrowing. If a creditor takes a bill of credit at the instance of

the government, it is because the government borrows that amount from the creditor. It is a novation of the debt. The great question involved in later discussions has turned, not on the power to emit the bill, but to make it a legal tender in the payment of debts. In the case of Hepburn v. Griswold³ it was held unconstitutional to make these bills of credit a legal tender in the payment of prior debts between private parties. A change in the personnel of the court caused a contrary decision in Knox v. Lee⁴ and in later cases. In these cases the power is based in a large degree upon the need of such action during war; but in a late case the Supreme Court sustained the power in cases of

Dooley v. Smith, 13 id. 604; Railroad Co. v. Johnson, 15 id. 193; Julliard v. Greenman, 110 U. S. 421.

both future and prior debts. In this case the court held that there is an implication of this power because all other nations have exercised it. This ground was so held with strong dissent, and is open to great objection.

The court argued that the power existed in Congress because it was not prohibited, and was prohibited to the States. But if this be so, what becomes of the language of the tenth amendment: "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved," etc.? If prohibited to the States, the States do not hold it as a reserved power. But can it be said that though prohibited to the States, if not prohibited to the United States, it is delegated to them. Can there be an implication of grant of power to the United States because the same power is prohibited to the States? It is further objectionable because the court holds that the Congress has power to provide a currency, and that this power involves the implication of a power to make their notes a legal tender. This assumption is faulty in both branches.

§ 244. Congress has no power to provide a currency, except, as we shall see, in metallic coin, and the power to emit bills was never intended to give the power to make them legal tender. But let us look more particularly to the objections to this extraordinary power.

1st. The whole debate in the convention shows that the express power to emit was denied, lest it should be anything else than a form of borrowing money; and further, with great emphasis, it was denied that the power was implied to make these bills a legal tender.

2d. As to prior debts, the government by making its notes, however depreciated, a legal tender in discharge of these prior debts, confiscates the property of the creditor to the debtor to the extent of the depreciation. And to hold that the Constitution intended that such a law was necessary and proper for the execution of the power to borrow money is contrary to Judge Marshall's canon of construction, so often

quoted.¹ Is it within the scope of the Constitution, or appropriate, or plainly adapted to that end, to interfere with private contracts in order to the borrowing of money by the government? Is it not prohibited by the fifth amendment, which, while allowing the taking of private property for public use, by implication negatives the power of taking private property for private use at all? Does this consist with the letter and spirit of the Constitution � to confiscate the property of A to B in order to facilitate the borrowing of money by the government? So far from it, this invalidation of private contract, this impairment of the obligation of private contract, not granted to the Federal government, but denied to the States, is at war with the spirit of the Constitution, and for such a power to be inferred is out of the question. It is true that this conclusive objection to the legal-tender feature as to pre-existing debts cannot be urged upon the same grounds as to future contracts. Still the mischief resulting from the inference of such power was in the minds of almost all the members of the convention, which made them sedulous to exclude the idea of the States interfering with private contracts; and this makes the assumption of the power by the Federal government to do so contrary to the spirit of the Constitution.

Despite these decisions, however, it has been decided that any contract, prior or future, which in terms is payable in gold and silver coin, cannot be made solvable by a tender of government bills.¹ These decisions, however, make the solvability of the prior contract, based upon the legal tender of coin, under then existing law by a retrospective law, palpably unjust and unconstitutional. A contract made before the war for money can only be discharged by the payment of gold and silver coin, as the only legal tender. How then could a subsequent law make it solvable otherwise?

Another modification of this decision is that it cannot affect the solvability of taxes or debts due the State, which

¹ Bronson v. Rodes, 7 Wall. 229; Furman v. Nichol, 8 id. 44; Trebilcock v. Wilson, 12 id. 687.

being interpreted means that they cannot assume it to be necessary or proper, in order that the government may borrow money, to compel the State to take for its debts and taxes the depreciated currency of the Federal government.¹

§ 245. It is needless, perhaps, to add that the mischievous results upon the moral question of the integrity of contracts and the inviolability of their obligation between man and man, by the assumption of the power by the government to impair and violate these private contracts for the purpose of aiding its power to borrow money, may be felt in the whole Body-politic, until the Supreme Court shall reverse this current of decision.

Nowhere have these evils been more strongly stated than by Judge Story in his Commentaries on the Constitution, one sentence of which may be quoted: "Laws compelling the receipt of a depreciated and depreciating currency in payment of debts were generally, if not universally, prevalent." He quotes from No. 44 of the Federalist, in which

Mr. Madison says: "Laws impairing the obligation of contracts are contrary to the first principles of the social compact and every principle of sound legislation." In Trevett v. Weeden,² decided in Rhode Island in 1796, the judges held that a law making paper money a legal tender was not only unconstitutional, but against the principles of Magna Charta. These views, so expressed, were obviously in the minds of the members of the convention in the debate on the clause above quoted. And that it should be supposed that men holding those views intended the implication of such a power to invade the sanctity of private obligation, as a necessary and "bona fide appropriate" means for the execution of the power to borrow money, is absolutely absurd.

§ 246. It is appropriate to consider in this connection the fifth and sixth clauses of the eighth section of this article and the tenth section of the same article, in these words: "The

¹ Lane Co. v. Oregon, 7 Wall. 71; Hepburn v. Griswold, 8 id. 613; Collector v. Day, 11 id. 113.

Congress shall have power to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; to provide for the punishment of counterfeiting the securities and current coin of the United States."¹ "No State shall ... coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts.''

By the ninth article of the Confederation, Congress had power to coin money, and so had the States. But Congress had the "exclusive right and power of regulating the alloy and value of coin struck by their own authority or by that of the States respectively." Congress also had the power to borrow money and emit bills of credit. The distinction between coining money and emitting bills of credit was very strongly made everywhere in the Articles of Confederation. There is one expression just quoted which shows what was intended by the word coin. They speak of coin being "struck " by their own authority. This shows the radical meaning of the word coin. It is derived from the iron seal which is impressed by being struck on the metal. It was C�sar's stamp of the "image and superscription" which certified a value; it did not give it. The value is inherent; the stamp merely certifies this value.

It is clear from our whole history under the Confederation, and from the debates in the Federal Convention and the character of the Federal Constitution, that:

(2) The Confederation had power to coin money, to borrow money, and to emit bills. The distinction is here drawn between coining money and emitting bills. Therefore neither is included in the other.

(3) The Constitution of the United States, in the clause above quoted, draws the same distinction. Congress has power to borrow money � to emit bills being included; and to coin money. This enforces the same distinction.

(4) An emitted bill is a promise to pay money, but is not money; therefore to emit bills is not to coin money.

(5) The States are forbidden to emit bills or to coin money, or to make anything but gold and silver coin a tender. If to coin money be inclusive of to emit bills, why is the proposition repeated?

(6) Congress has power to provide for punishing the counterfeiting of the securities and current coin of the United States. These securities must either be the bonds or the bills of the government. The powers to punish the counterfeiting of these and of current coin are distinct, and neither is included in the other.

The conclusion is absolute that under the power to coin money Congress cannot emit bills. The power to emit bills is included in the power to borrow money. The coin struck by Congress of gold and silver is "current" by the very terms of the Constitution, and the States can make nothing but coin a legal tender. The power to emit bills is not to make them current, but is a mode of borrowing. If by the Constitution the bills were current coin, then they might be claimed to be constitutionally legal tender, but being a mode of borrowing they are no part of the currency of the country.

§ 247. Taking all these clauses together, the true construction of the Constitution may be thus stated: The power to emit bills by Congress is inferred only as a means of borrowing money. The States are forbidden to emit bills of credit, which means bills intended as a currency.¹ But States may emit bills not intended as currency.²

Congress can coin money; the States cannot. And the gold and silver coin struck by Congress becomes legal tender because the States are forbidden to make anything else legal tender. The denial to the States to make anything but gold and silver coin a legal tender indicates that but for this prohibition the States might have done so. This prohibition to the States and the grant to Congress result in the conclusion that Congress can make current a coin which is legal tender

in the payment of debts, and against which the States cannot discriminate. If this be so, how can bills emitted under the power to borrow money, and not as currency, be a legal tender for any debt?

Except for the prohibition on the States as to legal tender, it is obvious that the power of Congress to coin money would have left the States free to make something else than coin a legal tender in the payment of debts. But when the Constitution gave to Congress the power to coin, and denied it to the States; and also denied to them the right to make anything but gold and silver coin a tender, it made coin a legal tender, and gave to Congress nowhere the power to make anything but coin a legal tender. It does not grant this power to Congress and prohibit it to the States. And the prohibition on the States against making anything but gold and silver a tender, affirmatively makes gold and silver coin a legal tender. This being so, the inference of power in Congress to change the legal tender established by the Constitution is out of the question, unless we are to presume the grant to Congress of a power because it is prohibited to the States.

The debate on the striking out of the clause "to emit bills of credit" shows the bitter antagonism of the members of the convention to any kind of paper, Federal or State, as a legal tender in the payment of debts. This feeling was as strong against paper issues by Congress as against paper issues by the States; both were regarded as flagrant violations of the rights of citizens in respect to their contracts. It is absurd to hold that this invasion of the integrity of private contracts by making them solvable in the paper issues of the government is any more mischievous or harmful when sanctioned by one government than when done by another. They prohibited it to the States because, unless prohibited, it was reserved to them. They not only did not grant it to Congress, but struck out the words "to emit bills," to exclude the possibility of an inference of such a power in Congress. So that they effected their purpose of protecting private contracts

from violation by the government in this matter of legal tender by prohibiting the power to the States, and not delegating it to Congress.

If, then, the Constitution has made gold and silver coin the only legal tender, and Congress has power to strike these coins, and this power to coin is denied to the States, as well as the power to make any other than these coins a legal tender, it would seem to follow that Congress may coin both metals, and can deny to neither the functions of money. As the States are confined to both as legal tender, Congress must furnish both. Under this power mints have been established under which the coinage of these metals is conducted. The silver dollar weighs 412� grains, consisting of 371 grains of pure silver and the rest alloy; and the gold dollar weighs 25.8 grains, being 22 of pure gold and the rest alloy. When an ounce of silver is worth $1.29 the coins are at par. The value of a silver dollar is ascertained by the proportion: market value of one ounce of silver is to 129 as the value of a silver dollar is to 100. Under the power of Congress to regulate the value thereof, that is, of the coined money and of foreign coin, it determines the relative quantity of either metal to be put into a coin of either � a question which at the present time excites great interest; but it would not be proper to consider it here, as it is a question of political economy rather than a question of constitutional power.

§ 248. Another question has arisen under these clauses: Can Congress charter a bank? Clearly so in the District of Columbia, because of the exclusive legislation therein granted to Congress.¹ It has been supposed that this question was settled in McCulloch v. Maryland.² That case, however, only decided that the establishment of a bank as a means to exercise the fiscal functions of the government was necessary and proper within the true meaning of those words. The court considered it as a means to conduct fiscal operations, which was a legitimate end, and this was an appropriate means to that end.

But again the question arises: Can a national bank be incorporated for the purpose of providing a currency for the country? We are met by the further question: Has Congress under this power to coin money the right to provide a paper currency for the country? And that being answered in the negative, as we have shown it should be, the establishment of a bank for that purpose would not be constitutional because the end in view is not legitimate. The court expressly excludes the idea of establishing such an institution for its own sake; and unless for a legitimate constitutional end, it therefore cannot be established at all by Congress. The language of the court is clear upon this point. It says: "The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished.... The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is therefore perceived why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them."

Had it been intended to grant this power as one which would be distinct and independent, to be exercised in any case whatever, it would have found a place among the enumerated powers of the government. But being considered merely as a means to be employed only for the purpose of carrying into execution the given powers, there could be no motive for mentioning it particularly.

§ 249. Mr. Madison gives an interesting history of the debate on this question, to which reference may be made.¹He proposed to enlarge the motion of Dr. Franklin, "to provide for cutting canals, where deemed necessary," into

a proposition to "grant charters of incorporation where the interests of the United States might require, and the legislative provisions of individual States may be incompetent." He declared that his primary object was to secure easy communication between the States. Mr. King said that in Philadelphia and New York the proposition would be referred "to the establishment of a bank," about which there was great contention. Mr. Wilson disagreed with Mr. King as to the prejudice against banks. The motion was then so modified as to be limited to the case of cutting canals. In that limited form it was rejected � ayes, three States; noes, eight States. It is therefore not settled by the decision in McCulloch v. Maryland that Congress has power to establish a bank to furnish a currency or for its own credit purposes; and the debate referred to negatives any such purpose by the members of the convention, but shows that a direct proposition for that purpose in the convention was virtually negatived. In the case of McCulloch v. Maryland the court held that the States could create banks of discount and circulation.¹ The decision in that case, therefore, gave a qualified sanction to the power to establish a national bank as a fiscal agent for the government, but conceded the power to the States to establish State banks within their borders. And yet, by a new construction of the terms of the Constitution, Congress has created thousands of banks for their own benefit and not as fiscal agents of the government, and to create a national currency; and has passed a law to tax State banks out of existence and give a monopoly to the national currency.² In the case of Veazie Bank v. Fenno, Chief Justice Chase delivered the opinion, which Mr. Justice Miller criticised in the Legal Tender Cases?

¹ 4 Wheat 416. In accord, Osborne v. Bank, 9 Wheat. 804; Briscoe v. Bank of Kentucky, 11 Pet. 257; Woodruff v. Trapnall, 10 How. 205; Darrington v. Bank of Ala-

LATE PROFESSOR OF CONSTITUTIONAL AND INTERNATIONAL LAW AND EQUITY, WASHINGTON AND LEE UNIVERSITY.

PROFESSOR OF CONSTITUTIONAL AND INTERNATIONAL LAW AND EQUITY IN WASHINGTON AND LEE UNIVERSITY.

To regulate commerce, etc., 519, 558. To "establish a uniform rule of naturalization," 558, 559. To control bankruptcy, 559-563. To punish counterfeiting, 564, 565. To establish post-offices, etc., 565-572. Power over copyrights and patents, 572, 573. To establish inferior courts, 573-576. To declare war, raise and support armies, provide and maintain a navy, etc., 576-581. Power over the militia, etc., 581-597. Over the seat of government, 597-600. The co-efficient power, 600-602. To admit new States, 602-610. New States, of what constituted and how admitted, 610, 616. Power to punish treason, 616-624 Power over public acts, records, etc., 624-627. Privileges and immunities of citizens, 627-634. Guarantee of republican form of government, 634-642. Express limitations on Federal power, 642-652. Prohibition against bills of attainder and ex post facto laws, 652-666.

The President possesses executive powers and none other, 693, 694. The President an officer of the United States, 694 Manner of electing; by electors. 695-701. Change in mode of electing by Twelfth Amendment, 701, 702. The Tilden-Hayes contested election, 702-704 Number of electoral votes necessary

to an election, 704. When may the House elect, 705. Mode of election of Vice-President, 705-708. Criticism of electoral college as a mode of electing, 709, 710. Eligibility to the office of President, 711. Disability of President to discharge duties of office, 711-714. Powers and duties of President, 715-723. Extent of power of the President and Senate to make treaties, 723-732. Power to nominate, etc., ambassadors, etc., 732-740. Power to fill vacancies, etc. 740-743. Duty to give Congress information by message, etc., 743, 744. Power to receive ambassadors, etc., 744-748. Duty to see that laws are faithfully executed, 748. May be impeached, 748. Examples of questionable exercise of power by Presidents, 749-752.

Judicial power vested in one Supreme Court, 755. Inferior courts, 756. Extent of judicial power of United States, 757-760. Jurisdiction of United States courts, 760-769. Extends to all cases in law and equity, 769. Cases affecting ambassadors, etc., 770-772. Admiralty and maritime jurisdiction, 772-781. "Controversies to which the United States shall be a party," 782-784, "Controversies between two or more States," 784, 785. Between "a State and citizens of another State," 785-797. Appellate jurisdiction of Supreme Court over judgments of State appellate courts, 798-800. Can any part of judicial power of the United States be vested in State courts? 800-804. Can a State court enforce a right arising under a law of the United States? 804-810. Power of removal of cases from State to Federal courts, 810-815. Right of habeas corpus branch of appellate jurisdiction of the Supreme Court, 815-819.

Two classes of � absolute and qualified, 821, 822. Absolute � no State shall "grant letters of marque and reprisal," 823. Or "coin money," 823. Or "emit bills of credit,"824, 825. Or "make anything but gold and silver coin a tender in payment of debts," 825-827. Or "pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts," 827-840. Or "grant any title of nobility," 840, 841. Qualified limitations upon, 841. No State shall without consent of Congress lay any imposts or duties, etc., 841-844 Or, "without consent of Congress, lay any duty of tonnage," 844. Or "keep troops or ships of war, in time of peace," etc., 844-846. Effect of post-bellum amendments on

the powers of the States, 846-852. Privileges or immunities of citizens of the United States not to be abridged by the States, 852-854. Due process of law and equal protection of the laws discussed, 854-872.

§ 250. The commerce power is contained in these words: "To regulate commerce with foreign nations and among the several States, and with the Indian tribes."¹

Blackstone² speaks of the English power over commerce in this language: "The power over all the coast, over navigable rivers and havens, the power of erecting beacons, light-houses and sea-marks, and of regulating importations and exportations, and prohibiting the incoming and outgoing of persons, are all parts of the royal prerogative." The exercise of this great prerogative was from time to time attempted before the Revolution of 1688 by laying duties upon imports. It was argued that as the king in regulating trade might exclude it, he could lay a tax or duty on its admission. Mr. Hallam gives an interesting account of the struggle in his Constitutional History.³ In the reign of James I. a case arose in which the issue was made upon the royal prerogative.⁴ When the Articles of Confederation were adopted, the power to regulate commerce was reserved to each State, except that Congress had power to make commercial treaties and to regulate trade with the Indians. The authors of the Federalist indicate the dreadful condition in which this left the States of the Confederation. Each State competed with every other for advantages in the trade with

foreign countries, and the inimical regulations of commerce by European countries, and especially by Great Britain, made a general public sentiment in favor of uniform regulations of commerce.¹

§ 251. We have already seen in the history of the adoption of the Constitution, ante, that the statesmen of the Confederation era regarded two leading defects in the Articles of Confederation which ought to be remedied. One was in the dependence of the Union upon the States for its needed revenue, and the other in the inability of the States separately to countervail the hostile commercial regulations of foreign powers as to our trade and navigation by any uniform system. These two defects are always kept separate. On February 3, 1781, Congress asked the States for power to levy a duty on imports to pay the public debt, but rejected a proposal made for power over commerce.² On the 18th of April, 1783, Congress again asked to be invested with the power to levy duties for revenue only.³ Virginia in December, 1783,⁴ looking to the British Orders in Council, which restricted all our trade to British bottoms, proposed to give Congress power to counteract this system by retaliatory regulations. On the 20th of April, 1784,⁵ a very limited power to this end was proposed for fifteen years. In all this there was no suggestion of a power to lay duties, but only regulations as to vessels engaged in the carrying trade.⁶ These movements show more favor to the grant of the commercial than of the taxing power, and that the two were never conjoined, but were always distinct. This distinction between the commerce power and the revenue power is asserted with great force in the resolutions of the Continental Congress, October 14, 1774.⁷

On the 28th of March, 1785, Maryland and Virginia, sister States upon the Potomac and Chesapeake, and friendly rivals

⁶ 10 Journal of Congress, 89, 246; 11 id. 31, 168, 188, 190; Elliott's Debates, 144 et seq.

for the trade which passed to and from the ocean through Capes Charles and Henry, met at Mount Vernon to agree upon a common system of regulations for their mutual interests. The two States made a compact regulating the commerce between them, and in the matters which united and divided them. It is instructive to see what were regarded by these two States as regulations of commerce. Provision was made for light-houses, buoys, etc., at points agreed upon by each, and stipulations made by each for respecting the "commercial regulations of the other, and for the navigation of their several waters by the vessels of the other." It was this compact which suggested a convention to regulate American commerce and the commerce of all the States. For why should not, it was reasoned, all the States concur in common regulations for the foreign trade of each and all, as well as to the interstate trade.

Mr. Madison offered resolutions to appoint commissioners from Virginia to meet other commissioners at the celebrated "Annapolis Convention." The resolution looked only to navigation and duties on vessels.

§ 252. In the Federal Convention the clause in reference to commerce was, in Mr. Pinckney's plan, the second clause of the sixth article, the first clause of which was the taxation provision.¹ In Mr. Patterson's and Mr. Randolph's plan the commerce clause and the taxing clause were kept distinct.² In the final adoption the distinction between these two clauses was most marked by their separation, the power to borrow money being interposed between them. This separation was at the basis of the contention of the colonies with the Parliament. They denied the power of Parliament to tax, but admitted the power to regulate commerce. The commerce clause was adopted nem. con.³ In the Pinckney plan the power to regulate commerce was granted with this modification: "All laws regulating commerce shall require the assent of two-thirds of the members present in each House."⁴ If this

provision had remained, it is obvious that a regulation of commerce could not have included the imposition of a duty, for that required only a majority to pass it; for thus, under cover of the revenue power, all commerce might have been regulated by a majority vote, and two-thirds were required. It could not have been supposed that Congress would have repeated the fraud of the king before the English Revolution, or the grievous wrong of the Parliament before our own, in usurping a power of taxation under the pretext of regulating commerce. It is true that the two-thirds requisition was stricken out as a part of the compromise, to which reference has been made ante, on the 29th of August, near the close of the convention;¹ but that cannot affect the point already made, that the framers of the Constitution held the commerce power and the tax power entirely distinct and separate, and that the commerce power did not include the tax power.

First. It does not mean the power to levy duties upon foreign imports, for the reasons already given; and these reasons are sustained by this additional observation: Suppose the Constitution had granted the power to regulate commerce, and had not granted the power to tax, could Congress have taxed under the power to regulate commerce? Or, e contra, if the power to tax had been granted, but that to regulate commerce had been denied, could Congress, under the power to tax, have regulated commerce? But the Constitution explains itself. It declares, "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another,"² showing the distinction made between the regulation of commerce and the regulation of revenue.

This view is sustained by the highest judicial authority. Gibbons v. Ogden³ decided that the power to regulate com-

merce was wholly distinct from, and not inclusive of, the power to lay duties or taxes. And in the Passenger Cases¹Chief Justice Taney and Mr. Justice Miller stated the same principle; and Justice Miller, in a much later case, takes the same view.²

Reference may be made, in addition, to the practice of the Congress of the Confederation under Article IX, which gave power to Congress to regulate trade, and to manage all affairs with the Indians, not inhabitants of any of the States. In the execution of this power Congress passed an ordinance which prohibited all trade with Indians except by citizens of the United States, and by them only under a license. Thus the prohibition and restriction of this trade were regarded as regulations as to trade; but no tax or duty was imposed except a license fee from the trader, and a bond was required for a fair observance of the regulations of Congress. Congress thus interpreted the power to regulate commerce with the Indians as a power to prohibit or license it, and to prohibit and restrict the travel of persons into the Indian Territory, but with no claim of power to lay a duty upon such trade or person.³

§ 254. Second, (a) What does commerce mean? It is derived from com and merces, traffic in things. In the great case of Gibbons v. Ogden,⁴ this precise meaning is given to the words.

(b) It means the incidents and media of traffic and exchange; that is, transportation, navigation, ships, etc., by land and sea.

(c) Does it include intercourse of persons in travel? Yes. The word "intercourse" had been added as included within the regulations of commerce. This transitus of persons may be either of such as are connected with commerce and things, or of persons traveling with no relation to commerce and things. As to the first, there could be no reason for not

including them within the term "commerce." For how can regulations of the commerce in things and in the vehicles for the transportation of things be separated from the person in charge of and connected with the things and subjects of commerce? Whether these apply to persons traveling with no relation to commerce and things coming into or going out of the country, or passing from State to State, was much debated in the Passenger Cases.¹ Interpreting these words from the environment of those who adopted them, and looking to the exercise of power by Congress under the Confederation to regulate trade with the Indians, we have seen that Congress prohibited persons from going into the Indian Territory as late as 1786 and July, 1787, when the Federal Convention of that year was in session. When this power was extended to trade with foreign nations and between the States, it is natural to presume that it was intended to regulate the intercourse of persons not related to commerce and things. But this is made more clear by reference to the proceedings of the convention themselves.

On the 6th of August, 1787, a draft of a Constitution was reported to the convention by Mr. Rutledge from the Committee of Detail.² In article VII, section 4, of that draft, it was provided that "no tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited."³ This clause limits the tax power as to such migration or importation of persons, and then denies power to prohibit such migration or importation. The tax or duty laid was aimed at the slave trade, which was permitted to continue until 1808; but the latter words have no reference to the tax power at all. To what, then, could these words refer, except as a limitation on the commerce power, under which alone Congress could have had a pretense for

the prohibition of the migration or importation of persons. The clause was referred with others to a committee. On the 24th of August, 1787,¹ the clause was reported thus: "The migration or importation of such persons as the several States, now existing, shall think proper to admit shall not be prohibited by the Legislature prior to the year 1800; but a tax or duty may be imposed on such migration or importation at a rate not exceeding the average of the duties laid on imports." Gouverneur Morris remarked on this as a power to tax free men migrated or imported. George Mason replied: "The provision as it stands was necessary for the case of convicts, in order to prevent the introduction of them."² The latter clause was then amended, nem. con., so as to read: "But a tax or duty may be imposed on such importation, not exceeding ten dollars for each person." A tax or duty was imposed on the person imported as a slave, but the migration of free persons might be prohibited after 1800. These proceedings show that the power to tax slaves and not free men was granted, and the power to prohibit the migration of free persons as well as slave importation was granted by clear implication; the implication of power to prohibit the migration of free persons being under the power to regulate commerce, and to prohibit commerce in slaves after the date stated. This makes the commercial power reach to the prohibition of the migration of persons and the importation of things. These views are confirmed by many cases.³ So that it seems to be the clear meaning of the Constitution that the words "to regulate commerce" include the regulation of migration of persons irrespective of their relations to things in commerce.

(d) By later cases the power has been extended to embrace contracts as to things in commerce, as correspondence by

³ People v. Compagnie G�n�rale Transatlantique. 107 U. S. 59-62; Head-Money Cases, 112 id. 580, 591;

Mobile v. Kimball, 102 id. 691, 702; Nishimura Ekiu v. United States, 142 id. 651; Giozza v. Tiernan, 148 id. 657.

telegraph, etc. These telegraphs were long since invented, but as they were new means of commerce of persons and things, the power embraces commerce through those means as it had done through the old and superseded means. The power is not changed by the increase of its domain by reason of the advance of scientific investigation.¹ In regulating commerce, therefore, Congress regulates traffic in things, vehicles of transport and things in transitu, but not the things themselves. Before and after the transitus they are beyond this power of regulation. The production and use of things in the terminus a quo and the terminus ad quem are not subjects of the commercial power, but of the law of the State or country from which and to which they are transported.²

(e) "Regulate" � what is its meaning? Does it mean to create commerce? No; it presupposes the existence of commerce to be regulated. Does the power to regulate include the power to prohibit by embargo? This power to prohibit is inferable from the clause already quoted.³ The commerce power is by that clause extended to prohibition, and only limited as to the particular subjects mentioned in that article after a certain year. The question arose in 1807 and 1812 under the Embargo Act. It was resorted to as a means of protecting our ships from English and French cruisers, by keeping them within our ports when unable to protect them on the high seas. It embraced vessel, cargo, exports, etc., which were not taxable under the Constitution, which forbade taxes or duties on exports,⁴ but an embargo was laid on them as a means to their protection. The environment of the convention made it understood by the use of those words, similar to the British prohibitory rules prior to the Revolution, and the prohibition on Indian trade under the

In re Nagle, 135 U. S. 1; Royall v. Virginia, 116 id. 572; Nashville v. Alabama, 128 id. 100.

Confederation in the power to regulate trade, and the reasoning given in the public State papers for the embargo lead to the same conclusion.¹ These embargoes were laid on ships, and also on exports in time of peace, although there was no power to lay a tax or duty on exports. That again distinguishes between taxation and the commercial power.

§ 255. Third. The power to regulate commerce involves the power to pass navigation laws as to coastwise and foreign vessels, prescribing the vessels as vehicles for things in commerce in which they may be carried. Thus from an early date the government under the Constitution has discriminated as to domestic interstate commerce between foreign and home bottoms, and has given a monopoly to the latter in interstate commerce, and an advantage in foreign commerce to home bottoms over foreign bottoms. It is obvious from the history of the adoption of this clause that this power was intended to be included within the words "to regulate commerce." The words "commerce" and "navigation" were used interchangeably in the various propositions made in the convention in reference to the form this clause should assume.²

Laws referring to registration of vessels, regulations for the carrying of passengers, rules as to inspection of vessels to insure safety, etc., are within this power; also a duty on the head of an immigrant to provide a fund for the support of paupers among them; so of interstate telegraph messages. (See Head-Money Cases, overruling the Passenger Cases.³) This will suffice as to regulations of foreign commerce.

¹ Report of Mr. Jefferson in 1793, Am. St Papers, 432; Resolution of Mr. Madison in the House of Representatives, 1793; Message of President Jefferson, 6 Am. St. Papers, 57; Letter of Secretary Madison, 7 Am. St. Papers, 25; Report to Congress, Id. 75, and the Proclamation of President Madison, Id. 213.

3 Head-Money Cases, 112 U. S. 580; State Freight Tax Case, 15 Wall. 232; Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1; Telegraph Co. v. Texas, 105 id. 460; Ratterman v. W. U. Tel. Co., 127 id. 411; Bank of North America v. Cooper, 137 id. 472.

But does the power so extensive in its reach as to foreign commerce have the same interpretation as to interstate commerce? A negative answer must be given to this question. The considerations which justify this conclusion are too important to be omitted.

(a) Under the Articles of Confederation the States could interdict trade inter se. The grant of power to Congress to regulate interstate commerce was with the purpose not to transfer this power of interdicting interstate trade to Congress, but to leave interstate commerce free, as the Constitution intended, in order to form a more perfect union. Could the Constitution have intended to destroy the freedom of interstate trade by Congressional power, when it took it from the States and vested it in Congress in order to prevent such destruction? In the case of Railroad Co. v. Richmond,¹ Mr. Justice Field, speaking of this purpose in language which authorized the preceding statement, distinctly says: "The power to regulate commerce among the several States was vested in Congress in order to secure equality and freedom in commercial intercourse against discriminating State legislation; it was never intended that the power should be so exercised as to interfere with private contracts not designed at the time they were made to create impediments to such intercourse." Again, he says: It was "designed to remove trammels upon transportation between different States which had previously existed, and to prevent the creation of such trammels in future." And in speaking of the acts of Congress called in question, he says: "They were intended to reach trammels interposed by State enactment or by existing laws of Congress."

(b) If it is objected that the phrase to "regulate commerce" may mean the same power in reference to interstate trade as it does as to foreign trade, the answer is very easy. These regulations of commerce of either kind may be made by law, if the law be necessary and proper to carry the power into execution.² A law that is necessary and proper to protect

our vessels and the property engaged in foreign commerce against foreign enemies would not be necessary or proper as to interstate trade in a union between friendly States united under the Constitution. The word "proper" means, says Judge Story, in the clause cited by Chief Justice Chase,¹"bona fide appropriate." He says it is at once admonitory and directory. Can it be "bona fide and appropriate," in the exercise of a power which is delegated to make a "more perfect union" between the States, to pass a law which would disunite the States by antagonistic commercial relations between them? Can it be appropriate to the end of "domestic tranquillity" to sow the seed of controversy and rivalry between them in their trade inter se?

When we look at all powers vested in Congress as trust powers to be used for the States as beneficiaries and as members of one family of commonwealths, so to be used as to promote union and not disunion; to establish harmony and peace and not discord and hostility between the States, it must be inevitably predicted that the courts will never hold any law of Congress, which prohibits, restricts or ties interstate commerce, to be either necessary or proper as a regulation of commerce, but they must hold it to be a perversion of its trust power to the subversion of the fundamental principles of the Constitution. The power to regulate foreign and interstate commerce was given in the same terms diverso intuitu. In the first, to protect all against the machinations of foreign enemies; in the second, to protect and promote the free and unobstructed movement of men and things between the States in the family of the Union.

(c) Congress is forbidden to tax or lay duties on articles exported from any State.² It is true that the Supreme Court has confined the word "export" in this clause to exports to a foreign country.³ But it is hardly a matter of doubt that this proposition is intended to apply to interstate transitus

as well as to foreign exportation. For the article, if dutiable or taxable as a subject of interstate commerce, might thus, in the absence of evidence as to its ultimate destination to a foreign country, escape the protection intended to be given the State product by this clause of the Constitution. Besides, unless such prohibition is made universal, it would come into conflict with that clause of the Constitution which prohibits Congress, by any regulation of commerce or revenue, to give preference to the ports of one State over those of another; and if made universal would, in the language of Judge Marshall's canon of interpretation, be not "within the scope of the Constitution;" and if not prohibited in terms would not "consist with the letter and spirit of the Constitution." Such a power was never intended to be granted, because it would be utterly at war with all the purposes for which the Constitution was adopted.

(d) But there is another general clause of the Constitution which is clearly a denial of any such power by Congress. It declares that "Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."¹ In considering the meaning of this clause we must anticipate what would, in some respects, be more appropriately discussed hereafter. It will be perceived that this is a declaration of the personal right of every citizen, and belongs to him as such. No Federal or State law gives it to him; he holds it by the higher title of the Constitution itself. If, therefore, any regulations of commerce should invade the right conferred by this article, it would be, under Judge Marshall's canon, prohibited to Congress by the Constitution. It is a personal right which neither Congress nor a State can impair. It gives to a citizen in any State a passport to every other, and confers upon him the privileges and immunities which attach to the citizen of that other. The broad scope of this clause can be obtained from the history of its adoption. Under the Articles of Confederation, which brought the States and the people of the States into close and intimate

relations, which were intended to be more close and more intimate under the more perfect union formed by the Constitution, it was incorporated in the following words:^l "The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and egress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State to any other State of which the owner is an inhabitant; provided also, that no imposition, duties or restriction shall be laid by any State on the property of the United States, or either of them.

"If any person guilty of, or charged with treason, felony or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense."

"Full faith and credit shall be given in each of these States to the records, acts and judicial proceedings of the courts and magistrates of every other State."

Mr. Madison, in the Federalist,² refers to this fourth article of Confederation, and indicates very clearly that the words "privileges and immunities" written in this clause of the Constitution were deemed sufficient to include all the specific privileges of trade, etc., which were embodied in the fourth article of Confederation. This article of the Constitution was proposed in Mr. Pinckney's first plan in the words of the present clause of the Constitution;³ and was reported

in the same form from the Committee of Detail,¹ and by the Committee of Style,² and was finally incorporated into the Constitution without change. That this clause of the Constitution was intended to be a condensed statement of all the particulars mentioned in the Articles of Confederation cannot be doubted. If so, the right of the people of each State to have free ingress and egress to and from every other State, and to enjoy therein all privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, with the power of removal of the property of a citizen in one State to any other State of which the owner might be an inhabitant, is undoubted. Mr. Justice Washington, in Corfield v. Coryell,³ defines these words "privileges and immunities" in language which has been accepted with judicial approval ever since. He says they are intended to embrace rights fundamental in their nature, such as belong of right to the citizen of any free government; to secure "protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety," etc. This definition was approved by Chief Justice Taney in the Passenger Cases⁴ by the court, speaking by Justice Field, in Paul v. Virginia,⁵ and by the decision of the Supreme Court, through Mr. Justice Miller, in the Slaughter-House Cases,⁶ citing the case of Ward v. Maryland.⁷

§ 256. Mr. Justice Miller, in the Slaughter-House Cases, supra, says distinctly that the purpose of the fourth article of the Confederation and of the clause of the Constitution is the same; "and that the privileges and immunities intended are the same in each." In the Articles of Confederation "we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase." He further declares that these privi-

leges and immunities were those within the province of the State itself where the privileges and immunities were claimed; that the "entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government." It is therefore obvious that this right conferred by the Constitution upon the citizens of each State included free ingress and regress of persons and property and the like, and put them beyond the reach of the power of the States, and, a fortiori, beyond the power of the Federal government. The power, therefore, of Congress to tax or prohibit interstate commerce, including the intercourse of persons, did not exist in Congress or in the States. Congress may regulate such commerce so as to promote it and secure its safety, but cannot forbid it or tax it.

In a dissenting opinion in Stoutenburgh v. Hennick,¹ Mr. Justice Miller relies upon this construction of the clause as to the rights of a citizen as being a limitation upon the power of the States to tax drummers.

These considerations conclusively show that the power to regulate interstate commerce is not commensurate with the power of Congress to regulate foreign commerce; and while it may prohibit the transitus of persons from foreign countries into the United States as a whole, and prohibit commerce in things by embargo, yet no such power is vested in Congress as to interstate commerce. A confirmation of this conclusion might be derived from the requirement of uniformity of duties, imposts and excises;² and from the prohibition upon Congress of making any regulation of commerce which would give preference to the ports of one State over those of another. The whole Constitution, in all of its parts, looks to the security of free trade in persons and goods between the States of the Union, and by this clause prohibits either Congress or the States to interfere with this freedom of intercourse and trade.

§ 257. A great question may now be considered. The clause as to foreign and interstate commerce reaches the objects which are subjects also of reserved State powers. When these interlock, or the powers of Congress and of the States are exercised over the same object, where is the line of demarcation? In the leading case of Gibbons v. Ogden,¹Chief Justice Marshall addresses himself to this question, and in construing the words "commerce among the several States," he says: "It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary,"² Hence it follows that interstate commerce in things and persons relate to the transitus of such things and persons where the termini are in different States. Where they are in the same State the power of Congress to regulate them does not attach. It may be remarked that the power of Congress is not to regulate persons and things, but merely commerce in them. Quoad commerce, traffic, intercourse, etc., Congress has clear power as to things and persons; when not in transitu the States have a clear reserved power. Before things or persons become articles of commerce, interstate or foreign, State power is supreme. But while they are articles of such commerce, Congress has power to exclude State action.³

States, by their reserved power, legislate as to things and persons; Congress only regulates interstate and foreign commerce in things or persons. The boundary line between these two is in theory clear; in practice, sometimes confused. The courts have to find the location of this line in cases which arise, and must keep up the fence between them.

² The Daniel Ball, 10 Wall. 557: Hall v. De Cuir, 105 U. S. 485; Telegraph Co. v. Texas, 105 id. 460.

Bowman v. Railroad Co., 125 id. 478; Rhodes v. Iowa, 170 id. 412; Vance v. Vandercook Co., id. 438; Schollenberger v. Pennsylvania, 171 id. 1; Collins v. New Hampshire, id. 30.

Chief Justice Marshall, in Gibbons v. Ogden, supra, referring to inspection laws, used this expression: "They act upon the subject before it becomes an article of foreign commerce or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to a general government, � all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of the State and those which respect turnpike roads, ferries, etc., are component parts of this mass."¹

He further says: "In our complex system, presenting the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only certain enumerated powers; and of numerous State governments, which retain and exercise all powers not delegated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective governments to execute their acknowledged powers would often be of the same description, and might sometimes interfere. This, however, does not prove that the one is exercising, or has a right to exercise, the powers of the other."

He then goes on to say that when the States pass quarantine laws, the constitutionality of which has never been denied, they do not exercise the power to regulate commerce. Congress may seem to trench upon the quarantine power of the States; hence the early laws of Congress which he refers to and justifies. Congress has directed its officers to aid in the execution of these quarantine laws, and has sometimes made provision for it in aid of those of the States.

§ 258. These illustrations will serve the general purpose of indicating the mode in which Congress and State powers operating on the same objects may sometimes seem to be in conflict. The cases which will illustrate this more particularly will be presently referred to. The prime distinction

recognized in the leading case of Gibbons v. Ogden and the subsequent case of Brown v. Maryland^l shows that Congress has no power over things or persons except as subjects of foreign or interstate traffic or intercourse. When the thing or person is not in such commerce, Congress has no power over it. Therefore, until the thing or person has this commercial quality, the Congressional power does not attach, and the State power is complete. When it assumes the commercial quality the Congressional power is exclusive.

1st. Commercial power, to be necessary and proper while regulating commerce in its normal condition, must so regulate as not to destroy the essential reserved rights of the States. It is neither necessary nor proper for it so to do, but both unnecessary and improper. By analogy, the taxing power of Congress is so limited as not to allow a tax on the salary of a State judge.²

2d. As long as the person or thing is in commercial transitu the State cannot touch it, because it is under the regulations of Congress, and the State must so exercise its power in respect to these as not to interfere with the essential right of Congress to regulate commerce. But before transitus has once begun, or having begun has ceased, Congressional power does not attach and the State power is exclusive.

§ 259. These general principles may now be illustrated, and the distinctions better defined, by reference to the decisions of the courts upon cases which have arisen.

The case of Gibbons v. Ogden³ arose out of the grant by the legislature of New York to Livingston & Fulton of the exclusive navigation of all the waters within the jurisdiction of that State, with boats propelled by fire or steam, for a term of years, and authorized the chancellor to restrain by injunction any person from navigating those waters with such boats. Livingston & Fulton assigned their right to Ogden to navigate the waters between places in New Jer-

sey and the city of New York. Gibbons had two steamers employed in running between New York and Elizabethtown in New Jersey, in violation of the exclusive privilege owned through assignment by Ogden. Ogden's bill prayed an injunction to restrain Gibbons from using the said boats in navigating the waters in New York. Gibbons answered that the said boats were duly enrolled and licensed under the laws of the United States, and claiming, in virtue of such licenses, the right to navigate the waters between New Jersey and the city of New York. The chancellor perpetuated the injunction. His decree was affirmed in the Court of Errors of New York, and was carried to the Supreme Court of the United States by writ of error. The point at issue in this case was whether the State of New York had the right to grant the exclusive privilege of navigation with steamboats to Livingston & Fulton over the waters which lay between a point in New York and a point in New Jersey. The court held that as to commerce on such waters between two points in the same State the grant was in the reserved power of the State; but where it controlled navigation between a place in New Jersey and a place in New York, it was interstate commerce, and not subject to be controlled by the State, but under the exclusive jurisdiction of the Federal government. The court held that the Congressional power to regulate commerce was exclusive of any concurrent power in the State when Congress exercised its power, however it might be as to State regulations in the absence of actual exercise of power by Congress. It was held that the inspection laws, though related to the commercial power, were disconnected with it, and when exercised by the States did not conflict with the Congressional power; that the quarantine laws of the States were not in conflict with the Congressional power; and that where the State was in the exercise of these reserved powers, it must so exercise them as not to conflict with the proper regulations of commerce by Congress. In the case for judgment the contention was between the right of the State to regu-

late commerce find navigation between New York and a point in New Jersey and the power of Congress exercised in licensing Gibbons in the use of his steamers between the same points. This was a clear contest between Congress and a State in a matter of the regulation of commerce. Therefore, even conceding that the State might so regulate commerce if Congress did not undertake to do so, yet, when Congress did do so, the question was, whose regulation was supreme? Upon such an issue the decision was inevitable that, as a law of Congress made in pursuance of the Constitution was the supreme law of the land, this law of Congress must be paramount to the law of the State.¹ Of course the case is very different where the commercial regulation by Congress comes into conflict with the jurisdiction of the State as to the health and life of its people, etc. A vessel proposes to enter a harbor of a State under Congressional commercial regulations; and the State, to protect its people from disease, quarantines it. These two powers seem to conflict, but they do not, except as both operate upon the movement of the vessel, though from different sources of power. The vessel is subject to two powers which are entirely different, but not in conflict. It does not check a rightful object of commerce. It merely erects a bar against disease. Congress regulates the rightful object of commerce, under color of which it cannot authorize wrongful commerce. It cannot introduce disease, but may a rightful subject of commerce. The two powers are made to consist by restraining the State, under color of quarantine, from regulating rightful commerce, and restraining Congress, under color of commerce, from regulating the unlawful importation of disease.

Chief Justice Marshall says in this case: "It is no objection to the existence of distinct, substantive powers that in their application they bear upon the same subject. The same bale of goods ... that may be the subject of commercial regulation may also be the vehicle of disease. And the health laws that require them to be stopped and ventilated are no

more intended as regulations on commerce than the laws which permit their importation are intended to inoculate the community with disease. Their different purposes mark the distinction between the powers brought into action, and while frankly exercised they can produce no serious collision."

§ 260. The delicate boundary line between the Congressional and State power may be drawn by the judiciary upon the principle that the State may not mala fide, under color of its reserved power, impinge on the commercial power of Congress; and Congress may not, under color of its granted power, impinge on the reserved power of the State. Bona fides is required on both sides. This bona fides is equivalent to the word "frankly" in the quotation above from the Chief Justice.¹ Each must use its distinct power in such a way as not to trench on the power of the other. Where the judiciary find that a State uses its reserved power as a pretext to regulate commerce, or that Congress under the commerce power invades the reserved clause jurisdiction of the State, it shall so adjust it in both cases as to maintain the supreme law of the land over Congress and the States. Hence the early laws of Congress regulating commerce respected the quarantine laws of the State, and aided their maintenance, and did not obstruct them. And this because a law to regulate commerce was neither necessary nor proper, but the contrary, when it introduced into the State disease and death, physical or moral, contrary to the State quarantine.

Another illustrative case is that of Brown v. State of Maryland,² which was this: Maryland required an importer to pay a license tax to her before he should be permitted to sell a package of imported goods. The importer was indicted by the Maryland court for having imported and sold a package of foreign goods without taking out a license under the Maryland law. The importer demurred, and there

¹ See in accord, Peete v. Morgan, 19 Wall. 581; Steamship Co. v. Louisiana Board of Health, 118 U. S. 455; United States v. E. C.

Knight Co., 156 id. 1; St Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 id. 349. ² 12 Wheat. 419.

was judgment against him on the demurrer for the penalty prescribed by the act. It was contended that the act of the State violated two provisions of the Federal Constitution: the one forbidding the State, without the consent of Congress, from laying any imposts or duties on imports or exports,¹ and the other the clause which gives to Congress the power to regulate commerce with foreign nations. The Chief Justice held that the judgment under the law of Maryland conflicted with that provision of the Constitution just quoted. He held that a tax on the sale of an article imported only for sale was a tax on the article itself; and that, therefore, this tax was a duty laid by the State on an import. He said that it was in conflict with the power to regulate commerce, because when Congress allowed the importation, that would avail nothing if it did not authorize the sale of the thing imported. This was as essential an element as the importation itself, and must be considered a component part of the power to regulate commerce.

The Chief Justice, determining when the power of the State over the article which is the subject of importation begins, so as to be subject to taxation and the like, says: "When the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has perhaps lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer in his warehouse, in the original form or package in which it was imported, a tax upon it is too plain a duty on imports to escape the prohibition in the Constitution." And again: "If he sells them, or otherwise mixes them with the general property of the State by breaking up his packages and traveling with them as an itinerant peddler," they become liable to taxation. When it does this, "the tax finds the article already incorporated with the mass of property by the act of the importer. He has used the privilege He had purchased, and has himself mixed them up with the

common mass, and the law may treat them as it finds them." And he goes on to say that in the case of gunpowder, or of infectious or unsound articles, the State has a right to require them to be removed, under its reserved power to preserve the health and safety of its people. The Chief Justice also holds that inspection laws by the States are not touched by this decision.¹

§ 261. The article when inspected is not yet an export. The State has a right to inspect its own product, even when it may be intended for export; and that this is a reserved power of the State further appears from the language of the Constitution itself.²

In the License Cases³ and the Passenger Cases,⁴ these questions were much discussed, but with very contrary opinions, which have been adjusted by later decisions. The question of the demarcation between the power of the State and the commercial power of Congress has arisen in many cases in respect to the migration of persons. We have seen that the migration of persons is under the commerce power. What can the State do in reference to persons migrating who are physically or morally diseased? In New York v. Miln,⁵ the State of New York inflicted a punishment upon the master of a vessel arriving from a foreign port who neglected to report an account of his passengers. The court (Story, J., dissenting) held that the law was not a regulation of commerce, but of police, and was not in conflict with the Constitution.

In the cases of Henderson et al. v. Mayor of New York and People v. Compagnie, etc.,⁶ the question arose whether a State had the reserved power, as a matter of police, to obstruct the migration of criminals, lewd women, paupers and diseased persons. The court decided against the constitutionality of the law, but because the law obstructed the migration of all

¹ Gibbons v. Ogden, 9 Wheat. 1; Turner v. Maryland, 107 U. S. 38; Puryear v. Commonwealth, 5 Wall. 475; Waring v. Mayor, 8 id. 110.

³ 5 How. 504. ⁴ 7 How. 283. ⁵ 11 Pet, 153. ⁶ 92 U. S. 258, 275; 157 id. 59.

persons and not the objectionable ones only; the doctrine being held that the State could obstruct such as are above mentioned, but could not obstruct all merely because some might be in the objectionable list. This is due, despite the commercial power of Congress, to State power to protect itself against such persons coming into its borders, and does not obstruct legal commerce or the migration of unobjectionable persons, but only of those who would be injurious to society. And it is held that a State may make port regulations to prevent collision of vessels, and for the safety of passengers and freight thereon, and to facilitate the delivery thereof, but cannot tax the receiving and landing of such.¹

A like question has arisen as to diseased cattle passing from State to State. In Railroad Co. v. Husen² the court decided a law of Missouri unconstitutional which prohibited the driving of all Texas cattle through the State; but in emphatic language declared that a State may enact health laws to protect life, liberty, health or property within its borders, and to prevent the entrance of persons or animals who are diseased.³ But these laws must be absolutely necessary for the purpose. In Kimmish v. Ball⁴ the court approved the language in 95 U. S. 472, supra, and declared that State laws aimed to prevent diseased cattle from coming into a State are valid, but that they must be bona fide for safety and protection.

And in a late case in 141 U. S. 60,⁵ it was held that this police power for safety is not in conflict with the interstate commerce power, but where bona fide for safety is substantially under the reserved power of the States.⁶ The same doctrine is maintained in Brimmer v. Rebman,⁷ it being held that a meat law of Virginia was unconstitutional because, in assuming to protect itself against diseased meat from another State brought into its borders, it excluded all meat

⁴ 129 U.S. 217. ⁵ Crutcher v. Kentucky. ⁶ Plumley v. Massachusetts, 155 U. S. 461. ⁷ 138 U. S. 78.

from other States. And in a similar case, as to flour (141 U. S. 62¹), it was held that while a State might exclude bad flour, yet it could not, by indiscriminate exclusion, keep out the good. The first was internal polity; the second was a regulation of commerce. To the same effect was a recent decision of the Supreme Court upholding a law of the State of Georgia forbidding the running of freight trains on Sunday.²

The same question has arisen as to State laws taxing peddlers, in Wilton v. Missouri.³ In that case a tax on a peddler for goods from other States was held unconstitutional because aimed at goods brought from another State, which was really a tax on interstate commerce in those goods, and a violation of the rights of citizenship under the clause already commented on.⁴ But in the late case of Emmert v. Missouri,⁵the Supreme Court, upon a very careful and elaborate report of the cases, held a statute of Missouri requiring peddlers of goods to take out and pay for a license, and making no discrimination between the Missouri products and those of other States, was not, as to goods previously sent to them by manufacturers in other States, repugnant to the power of Congress to regulate commerce among the States. This case is important because it shows that a tax on goods after they have been imported from another into the State where they are taxed is not unconstitutional, because the taxation is upon the goods after they have ceased to be subjects of commerce. They have doffed the character of subjects of interstate commerce and have donned the character of property within a State. This is in accordance with the case of Brown v. Maryland, supra. This case approves Machine Co. v. Gage,⁶ and the decisions in Brown v. Houston,⁷ Robbins v. Shelly Taxing District,⁸ and Brennan's Case.⁹

² Hennington v. Georgia, 163 U. S. 299; Norfolk & Western R. R. Co. v. Commonwealth, 93 Va. 749.

⁵ 156 U. S. 296. ⁶160 U. S. 676. ⁷ 114 U. S. 622. ⁸ 120 U. S. 489. ⁹ 153 U. S. 189.

mers. The drummer in one State is not taxed in another;¹and this was also held in a late case where a tax was laid on a domestic drummer.² It is held in a strong dissenting opinion by Chief Justice Waite in these cases, two judges concurring with him, that if the tax on the drummer is the same as on the foreign drummer, the reserved right of the State to tax business within its borders made this a legitimate exercise of the tax power without the purpose to interfere with interstate commerce as to the goods represented by the drummer of the other State.

The agent of an interstate line of railway is not taxable as such by a State. The tax is held to interfere with the freedom of interstate traffic and intercourse.³ Nor can the privilege of keeping an office be taxed or interfered with.⁴Nor can a State tax telegraphic messages interstate, and a tax on the receipts from such messages is unconstitutional.⁵But a tax on all the receipts without discrimination is held to be lawful; and so as to a tax upon freight where there was no discrimination as to the receipts from freight, but a tax was laid upon all receipts without discrimination.⁶ In all these cases it will be seen that Congress regulates in the interest of a free commerce against State discrimination. But where the tax is specifically upon interstate receipts it is not constitutional.⁷

§ 262. These doctrines have lately been affirmed in the case of Postal Telegraph Co. v. Adams, and Railroad Co. v. Pennsylvania.⁸ So a State law requiring the posting of

² Leloup v. Port of Mobile, 127 U. S. 640; Asher v. Texas, 128 id. 129; Stoutenburgh v. Hennick, 129 id. 141.

⁶ Case of State Freight Tax, 15 Wall. 232; Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1; Tel. Co. v.

Texas, 105 id. 460; W. U. Tel. Co. v. Massachusetts, 125 id. 530; Ratterinan v. W. U. Tel. Co., 127 id. 411. See also N. Y., L. Erie & W. E. E. v. Pennsylvania, 158 id. 431; Pacific Exp. Co. v. Siebert, 142 id. 339; Postal Tel. Cable Co. v. Charleston, 153 id. 692.

⁷ Case of State Freight Tax, 15 Wall. 232, 284; Telegraph Co. v. Texas, 105 U. S. 460; Maine v. Grand Trunk E. R. Co., 142 id. 217.

the rates, etc., of a railroad engaged in interstate commerce is held a constitutional exercise of police power.¹ This accords with the case of New York v. Miln, supra. A law forbidding the employment of a color-blind locomotive engineer on a railroad engaged in interstate commerce was also held unconstitutional.² So a State may tax a railroad for transporting between two points in the same State, though the transitus may be through part of another State; it is one transitus between termini in one State.³ A State may tax an interstate railroad on its receipts in proportion to the length of its road in that State. Such tax is not on interstate commerce, but upon the receipts of its own railroad within its own limits, ascertained in the proper way.

The State may tax the property of a railroad created by Congress, but cannot tax its operations.⁴ So a State may regulate any local business by a foreign corporation, but not any commercial business by it with other States. It may regulate the speed of trains running into cities; and may forbid gunpowder being carried except in a way consistent with safety.⁵ A State may tax a ship engaged in foreign or interstate commerce as property, but not on its tonnage. The first is police power; the last commercial.⁶ A State may tax and license ferry-boats enrolled in the United States; but may not tax their tonnage.⁷

A State tax on an interstate bill of lading is void.⁸ So a town, a State municipality, may build wharves, regulate wharf rates, and forbid landing except at wharves. These are police regulations, not commercial. These are for safety,

47, Brown v. Maryland, 12 Wheat. 443; License Cases, 5 How. 576; Hooper v. California, 155 U. S. 648.

not for obstruction; but the regulation must not discriminate against vessels of other States.¹

State laws which are bona fide aimed at the safety of commerce, and are not obstructive of it, and are not opposed to the laws of Congress regulating commerce, are held to be constitutional. They are for the safety of commerce, and not for its regulation.² And State laws providing for buoys, etc., as facilities to commerce and not obstructive of it are constitutional.³ It is held that a State may regulate the use of elevators, warehouses, etc., used for internal, and even for interstate, trade, and allow charges for the use thereof, not discriminating against other States. This is a police, not a commercial, regulation, unless Congress acts upon it, when it will be held that its law is paramount to that of the State.

§ 263. It will be proper now to consider the recent conflict between State and Federal power in reference to the traffic in liquor. Some of the States have, for preserving the health of the people, limited the importation of liquor into the State, and the question has arisen how far such legislation conflicts with the interstate commerce power of Congress. The case of Mugler v. Kansas⁴ arose out of a law of Kansas prohibiting the manufacture of intoxicating liquor within the State to be sold for general use as a beverage; and declaring that any still kept and maintained for the manufacture of such liquor should be abated as a common nuisance, and that the offenders should be tried upon indictment. Nothing in the laws of Kansas, as far as the record shows, forbade the manufacture of such liquor to be exported to other States. It was held not only that such legislation did not violate any other of the provisions of the Constitution or its amendments, the fourteenth included, but there

¹ Packet v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 id. 423; Packet Co. v. Catlettsburg, 105 id. 559; Pittsburg Coal Co. v. Louisiana, 156 id. 590.

³ Ward v. Maryland. 12 Wall. 418; Guy v. Baltimore, 100 id. 434; Mobile v. Kimball, 102 id. 691; Pittsburg, etc. Co. v. Louisiana, 15C id. 590.

was nothing to show that it operated at all upon commerce in such articles with foreign nations or among the States. The law was sustained. It was held a lawful exercise of the police power in respect to the well-being of its people. The court referred to the language of the judges in the License Cases,¹ and a number of others.

In Bowman v. Railroad Co.,² the court discusses an act passed by Iowa forbidding common carriers to bring intoxicating liquors into the State from any other State or Territory, unless furnished with an official certificate from a State official permitting it to be done. Bowman offered for shipment to the defendant railway company five thousand barrels of beer, to be shipped from Chicago, Ill., to Marshalltown, in the State of Iowa. The defendant company filed a special plea excusing its refusal to accept the beer for shipment as above stated, because the law of Iowa forbade it. To this plea a demurrer was entered by the plaintiff. The Supreme Court held that the plea was bad, because it forbade interstate commerce in the article; that the law of Iowa could not be deemed an inspection law nor a quarantine law, because the quarantine power does not allow a State at its mere will to declare that an article manufactured in another State is not to be regarded as property by the legislative declaration of the State to which the article is consigned. If a quarantine power involved the right to determine what were proper objects, then it might really forbid all, and thus nullify the commercial power altogether. To this opinion of the court there was strong dissent of three judges, who held that the police power to protect a people from the use of such liquors could not be overborne by the commercial power of Congress.

In the case of Kidd v. Pearson³ the question assumed another form. Iowa passed a law allowing the manufacture of liquors within the State for mechanical, medicinal, culi-

¹ 5 How. 504; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U. S. 25; Foster v. Kansas,

nary and sacramental purposes, but no other, � not even for transportation beyond the limits of the State; and punished by fine and imprisonment every person violating the statute. The defendant in this case answered that all his manufactured liquors were for exportation, and were sold outside of the State of Iowa. The court decided that the liquor was manufactured by Kidd for none of the four specified purposes named in the act, but for exportation, and this did not amount to the creation of such property in the liquor as to make it a subject of commerce. Liquor so manufactured was by the law of the State condemned as no property at all. That law operated in the State of Kansas before the effort to export. The question then was, did the liquor ever become the subject of the commercial power? It was condemned as no property before it started on its transitus. The commerce power, therefore, never operated upon it. The law of Kansas was upheld; it being held that the power of Congress could not invest the article with the quality of property so as to be subject to the commercial power when the State had declared it should have no such property.

In Giozza v. Tiernan,¹ it was also held that the commercial power must not be so used as to destroy the essential reserved right of a State; and that when the transitus has not begun, or having begun has ceased, the Congressional power does not attach, and the State power is exclusive. It is only when the article is in commercial transitus that the State cannot touch it. When is liquor under the commercial power in transitu? When delivered at the terminus a quo. Does it cease to be under this power when delivered to the consignee at the terminus ad quem? The answer is in the negative.

Following Brown v. Maryland,² the Supreme Court, in Leisy v. Hardin,³ held that the article was not subject to State power upon its arrival at the terminus ad quem, if sold by the consignee in the original package, unbroken and un-

consignee had either broken the package or sold it. In this case there was still a strong dissent of three judges. This decision rests upon the cases already cited.¹ Where the package is broken by the importer or the unbroken package is sold by him, the transitus is complete and the property passes under State power; but it seems if the consignee chooses to transport the unbroken package to another State he may do so. Congress has recently passed a law to conform its regulations of commerce to these State laws as to the importation of liquor. This, as in the quarantine cases already referred to, divorces the commercial power and the State police power. Such a law is held constitutional as a proper defense of the reserved power of the State.

commerce power does not preclude a State from passing laws preventing the sale of articles brought into the State from another, if intended to prevent the people from being cheated in the purchase of such articles by their deceptive appearance, and is a strong assertion of the police power of the State, when properly exercised, against any conflicting provisions under the power to regulate commerce.

The case of Coe. v. Erroll³ is very valuable for the illustration of these distinctions. In this case logs were cut and hauled from a place in New Hampshire to Erroll in the same State, for the purpose of transporting them by water from Erroll to a place in the State of Maine. The intent to transport did not withdraw them from State jurisdiction, and it was held that New Hampshire could still tax them. When started from Erroll to Maine they are in transitu interstate, and no longer subject to State jurisdiction, but are under the commercial power until the transitus is ended; and though the transitus be from State A to State C, through State B, they are not taxable by B, for they are

subjects of interstate commerce. Bat if the logs or other property be taxed more than other like articles because to be transported, the tax is unconstitutional, for it is a tax in effect on the transport, and not on the property. Nor does the transitus begin while the property is being conveyed by dray or the like to the depot. The transitus does not begin until delivery is made at the depot of the interstate railroad.¹

§ 264. A question of great importance has been discussed, whether the Congressional power over commerce excludes the exercise of the power to regulate commerce by the States.²It is obvious that the existence of the power when not exercised does not in all cases preclude the exercise of it by the States.³ Suppose Congress should refuse to provide lighthouses, buoys, etc., or to remove obstructions in rivers or harbors, can a State do so? And by analogy as to postal matters, if Congress refused to establish a postal system, would the States be precluded? The cases already cited in reference to these matters decide this question.⁴

Take another class of cases. May not a State erect a bridge over a navigable river? The answer is obvious. A bridge is a part of the internal polity of the State, and may be erected if it does not obstruct commerce. If it obstructs commerce, pro tanto it is forbidden, as in that event it would be a regulation of commerce. But in itself it is not. Hence a bridge across the Ohio river is not necessarily a commercial regulation. As a convenience to its people it is a police regulation. If it be a law obstructing commerce it is a commercial regulation. The maxim applies to both governments, sic utere tuo ut non alienum I�das. For a State by means of its bridge to obstruct commerce would be to trench on the power of Congress; for Congress to abate the bridge as a nuisance when it was not obstructive of commerce would be

¹ The Daniel Ball, 10 Wall. 557; Coe v. Erroll, supra. ² Federalist, No. XXII. ³ Mobile v. Kimball, 102 U. S. 691. ⁴ Ward v. Maryland, 12 Wall. 418;

Cook v. Pennsylvania, 97 U. S. 566; Guy v. Baltimore, 100 id. 434: Mobile v. Kimball, 102 id. 691; Pittsburg Coal, etc. Co. v. Louisiana, 156 id. 590.

for Congress to invade the reserved power of the State. This question arose in the Wheeling Bridge Case.¹ In that case the bridge was abated because it obstructed commerce; not because, in itself, it was a regulation of commerce. A bridge, therefore, is legal until Congress forbids. Hence, now, Congress grants the right to a State to build a bridge across a navigable river, and the bridge is built in the exercise of a police power inconsistent with the commercial power.²

Another class of cases arises where the State law directly infringes on the freedom of interstate or foreign commerce, as in the case of Brown v. Maryland, supra, and others. The act of the State is political, as by taxation or other interference. The trade to be regulated by Congress is either left free or has some regulations imposed upon it. In the former case, Congress by non-action having left the commerce free, any limitation or restriction upon it by the State would violate the Constitution; and if Congress has made a regulation respecting it, then that regulation, if proper, is paramount to any that is made by the State. The distinction is therefore obvious that a bridge or the like character of internal polity remains good unless in effect it obstructs commerce, but a tax or law forbidding commerce is per se a regulation of commerce and is void because of conflict with the commerce clause.³ Other cases on the subject may be cited.⁴

An illustration of this divisional line between State and Federal power is furnished in the case of patented articles; though patented by the United States, the State may forbid their sale for the safety of its citizens.⁵ But Congress cannot forbid the sale where the State does not, for it is for the State to determine under the police power whether it shall

² Bridge Co. v. United States, 105 U. S. 470; Willamette Iron Bridge Co. v. Hatch, 125 id. 1.

⁴ Willson v. Blackbird Creek Marsh Co., 2 Pet. 250: Cooley v. Board of Wardens, 12 How. 319; Pennsylvania v. Wheeling & Bel-

mont Bridge Co., 18 id. 420; Gilman v. Philadelphia, 3 Wall. 713: Osborne v. Mobile, 16 id. 479; Texas, etc. Ry. Co. v. Interstate, etc. Co., 155 U. S. 585; Monongahela Nav. Co. v. United States, 148 id. 312; Wisconsin v. Duluth, 96 id. 379.

or shall not be allowed.¹ So a Congressional license tax cannot prevail against a State law forbidding it. Congress may tax a business, but cannot license it; it is for the State alone to determine this question.²

questions arising out of the migration of the Chinese to the United States. The commerce power of Congress has been held applicable, in consistency with the view already stated, that this is a lawful regulation of commerce.³

The singular case of Crandall v. Nevada⁴ arose upon a law of that State imposing a tax on railroad and stage companies for every passenger carried out of the State by them. This was held to be virtually a tax upon the passenger for the privilege of passing through the State. The court was divided upon the question whether this was an exercise of the power to regulate commerce between the States by the State, the majority of the court thinking it was not, but two of the judges holding that it was. The majority of the court put it on the ground of the right of the Federal government to require, and the correlative right of the citizen to have, free transit in ordinary travel throughout the whole country. The case was not argued except for the State of Nevada, and, while the decision may be sustained, it would seem to rest more strongly upon the view already taken as to the clause of the Constitution relating to citizenship and the construction of that clause by Justice Miller in the Slaughter-House Cases.⁵ Construing this clause in connection with the fourth of the Articles of Confederation, we have seen that it secured absolute freedom of ingress and egress to the citizen of any State into, through and from every other. On this

¹ United States v. De Witt, 9 Wall. 41; Webber v. Virginia, 103 U. S. 346; Plumley v. Massachusetts, 155 id. 461.

² License Tax Cases, 5 Wall. 462, 473; Plumley v. Massachusetts, 155 U. S. 461.

581; Nishimura Ekiu v. United States. 142 id. 651; Chinese Cases, 149 id. 698; Lau Ow Bew v. United States, 144 id. 47; Lem Moon Sing v. United States, 158 id. 539; United States v. Wong Kim Ark, 169 id. 649.

foundation the State tax is clearly unconstitutional, as would be any tax by Congress upon any such passenger. Mr. Justice Clifford and Chief Justice Chase, in their dissent, express strong doubts as to the possession of any such power by Congress � a doubt which grows into conviction against any such power, because of the article we have referred to.

This power to regulate commerce applies to the District of Columbia and the Territories as well as to the States.¹This is obvious as to foreign commerce, but is also applicable to commerce between the District or Territories and the States upon the same reasons which were urged by the court in respect to the imposition of the direct tax upon the District and Territories in the case of Loughborough v. Blake.² And so the power to regulate commerce strictly internal to the District and Territories belongs to Congress under the express provisions of the Constitution.³ It was under the Congressional power that the Interstate Commerce Bill was passed regulating the rates of railroads and those of other carriers engaged in interstate commerce; by this bill also the commission is constituted to adjudicate all such questions. As all these public carriers, if corporations, held their franchises under the States, their regulation of rates, etc., if they affected the rights of interstate commerce, would be as void as if done by the State under whose authority they were created. And Congress exercised the power to regulate such commerce by controlling the unjust action of public carriers in destroying the freedom of this commerce which the Constitution designed. The Supreme Court has sustained the constitutionality of that act in several cases.⁴

⁴ Maine v. Trunk Line, 142 U. S. 217; Interstate Commerce Commission v. B. & O. Ry. Co.. 145 id. 263; Gulf, etc. Ry. Co. v. Hefley. 158 id. 98;

Richmond & Alleghany R. R. Co. v. R. A. Patterson Tobacco Co., 169 id. 311; United States v. Joint Traffic Ass'n, 171 id. 505: Hopkins v. United States, id. 578: Interstate Commerce Commission v. Alabama Midland R. R. Co., 168 id. 144; Anderson v. United States, id. 604.

§ 266. A remarkable case arose before the Civil War, to which reference may be made.¹ A Virginian shipped from a Virginia port a number of slaves on a steamer bound to the port of New York. He was carrying them to Texas, to which State he had removed. When they reached New York they were being carried from the wharf where the boat landed to another wharf where a Galveston steamer lay, to be placed on the latter to be transported to Texas. Awhile in transitu from wharf to wharf they were intercepted, taken from the possession of the owner, and were by habeas corpus discharged from his custody, and declared to be free, under the laws of New York prohibiting slavery. The case was carried to the Supreme Court of New York and decided in favor of the slaves, that court affirming the decision of the court below, three judges in favor of affirming and two for reversing. Preparations were made to carry the case by appeal to the Supreme Court of the United States, when the Civil War broke out, which ended the controversy. The constitutional question involved was whether, when the slaves were in transitu from Virginia to Texas, the New York law of emancipation operated upon them at all; whether the power of Congress over interstate commerce did not free them from the jurisdiction of New York while in transitu from Virginia to Texas. It would seem upon principles settled by the Supreme Court in cases already referred to, that if the vessel upon which they were shipped for Texas had only stopped at New York, and continued from New York to Texas, the journey would have been continuous and the law of New York could not have attached.² But the contrary contention was, that the continuous transit from Virginia to Texas was broken at New York by their transit from wharf to wharf to another steamer, and that, therefore, in that interval they became subject to the law of New York.

ton, 114 id. 622; Pittsburg, etc. Coal Co. v. Bates, 150 id. 577. ³ 141 U. S. 18.

tax the plaintiff upon the cars which were constantly in the State of Pennsylvania, upon such proportion of its capital stock as the miles of transit in the State bore to the whole number of miles in all the States over which the cars ran, was held not to violate the commerce power. The dissenting opinions of Judge Bradley and two other judges involve the question considered in the slave case supra.

§ 267. In closing this prolonged discussion of this important clause a few additional considerations may be noted.

A State is held in many of the cases to have no power to tax a foreign drummer, nor to forbid a person or corporation freely to engage in interstate commerce, and the reason assigned in the decisions has generally been that a State thus regulates interstate commerce. If this be so, then it would naturally follow that Congress could do these things because it is a regulation of commerce. This seems to the author to be a fallacy as to the ground of decision. For it has been seen that the article of the Constitution in reference to citizenship prevents a State or Congress from taxing or preventing intercourse of persons or transitus of property between the States. Both of these the Constitution left free, and they cannot be interfered with by State or Congress. Both are inhibited from the exercise of such power by the clause referred to.¹

Again, in the case of Groves v. Slaughter,² the reasoning of the court is to the effect that while each State under its police power could forbid the importation of slaves from other States, Congress could not do so. How could it, by any regulation of commerce, force slavery into a State which repelled and forbade it. This made the police power supreme and paramount to the commerce power. On the same ground Congress cannot, under the interstate commerce clause, force into a State contrary to its law moral or physical disease, or any institution of society which the State may forbid. The internal polity of the latter would be held paramount over any regulation of commerce to the contrary.

be carried in uncovered cars through any State of the Union? A negative answer is sustained by the whole current of authorities, and by the forcible language of the court in Crutcher v. Kentucky,¹ in which Mr. Justice Bradley says: "Disease, pestilence, pauperism are not subjects of commerce.... They are not things to be regulated and trafficked in, but to be prevented."

Reference may also be had to a very late decision in the case of Plumley v. Massachusetts,² in which, after the review of a large number of cases, the court, through Justice Harlan, uses this strong language:

"We are not unmindful of the fact � indeed this court has often had occasion to observe � that the acknowledged power of the States to protect the morals, the health, and safety of their people by appropriate legislation, sometimes touches, in its exercise, the line separating the respective domains of National and State authority. But in view of the complex system of government which exists in this country, 'presenting,' as this court, speaking by Chief Justice Marshall, has said, 'the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only certain enumerated powers, and of numerous State governments, which retain and exercise all powers not delegated to the Union,' the judiciary of the United States should not strike down a legislative enactment of a State � especially if it has direct connection with the social order, the health, and the morals of the people �

unless such legislation plainly and palpably violates some right granted or secured by the National Constitution or encroaches upon the authority delegated to the United States for the attainment of objects of National concern."

The question has been mooted whether Congress can regulate negotiable instruments, interstate and foreign, and whether they constitute commerce within this clause. We have seen that an interstate bill of lading is beyond the power

of a State to regulate, because such action would be a regulation of commerce.¹ But this is the regulation of an instrument which connects itself with the thing which is in transitu interstate or to foreign countries. But could the contract involved in negotiable paper be the subject of regulation by Congress? Upon this there are no decisions, but a negative answer to the question is strongly confirmed by the late case of Hooper v. California,² citing the opinion in Paul v. Virginia³ and other cases.

Does this power include the improvement of rivers and harbors and the like by Congress? If it be the improvement of waters strictly internal to the State, the answer is in the negative.⁴ But where the waters, though within a State, are parts of the water-way between points in that State to other States and to foreign countries, the power to improve them has been asserted with strong reasoning for the constitutionality of its exercise. Without going into this question fully, reference may be made to what has already been said about the regulation of commerce proposed between Virginia and Maryland in 1786, for a system of regulation of commerce between those two States. In this compact stipulations as to light-houses, buoys, etc., at points expressly for the safety of navigation, were held to be regulations of commerce.⁵ We may fairly interpret the meaning of the words used in this clause by the meaning attached to them by previous compacts between the States.

Furthermore, it was proposed in the convention that the States should not be restricted in laying tonnage duties for the purpose of clearing harbors and erecting light-houses. It was argued for the rejection of the proposition, and for the adoption of that in the Constitution, that no such duty should be laid by the State without the consent of Congress; that the power to clear harbors, erect light-houses and the like was included in the power of Congress to regulate com-

merce.¹ The power to build railroads for postal and military purposes will be hereafter considered.

§ 268. We come now to commerce with the Indian tribes. These tribes are held to be quasi-foreign nations, but are really domestic dependent nations, and trade with them is regulated by license or by prohibition. It is sufficient to refer to the cases.²

§ 269. In the Articles of Confederation, article IV, there was a provision which gave the privileges and immunities of free citizens in the several States to the free inhabitants of each; and to the people of each State right of free ingress and egress to and from any other State, etc. (See Article in Appendix.)

Mr. Madison, in the Federalist,³ calls attention to the three terms used in this article, to wit: "free inhabitants," "free citizens," and "people," and then proceeds to give reasons why this clause gave place to the clause in the Constitution, article IV, section 2, to which we have sufficiently referred; and why it became important under this clause for the intercommunication of the privileges and immunities of the citizens of each State to the citizens of the several States; and why it was important to substitute for the dissimilar rules of naturalization under the Confederation the uniform rule under the Constitution. This power in the Constitution is vested in Congress by these words: "To establish a uniform rule of naturalization."⁴

It is obvious that as the citizens of each State are to be entitled to all privileges and immunities of citizens in the several States, that each State is interested in the mode in which every other State creates the status of citizenship of foreigners or others; and therefore that citizenship which

² Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 id. 515; United States v. Holliday, 3 Wall. 407; United States v. Forty-three Gallons of Whiskey, 108 id.

491; Choctaw Nation v. United States, 119 id. 1; United States v. Rodgera. 4 How. 567.

embraces such privileges and immunities would best be secured in every State in the Union by leaving its determination to the common consent of all. This is one of the powers which is exclusive, when in exercise by Congress, of any such power in the States; and as to foreigners would seem to be exclusive whether in exercise by Congress or not.

In the Federalist^l Mr. Hamilton lays down the rule that where the Constitution "granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant," the power of Congress would be exclusive of that of the States. And he gives as an instance this very clause, of which he says: "This must necessarily be exclusive; because if each State had power to prescribe a distinct rule there could be no uniform rule." But despite this exclusiveness of power, the right of suffrage may be given by any State to aliens. The naturalization power does not include the suffrage power, which is exclusively reserved to the State.²

It has been decided³ that an Indian is not a citizen of the United States under the fourteenth amendment of the Constitution, unless naturalized, though he may sever his tribal relations. He belongs to a domestic dependent nation, as we have seen, and cannot be introduced into citizenship of any State of the Union but by the power of Congressional naturalization. It is needless to specify these various rules. A reference to the statutes is sufficient.⁴

§ 270. The second part of the fourth clause of article I, section 8, clause 4, of the Constitution runs in these words: "To establish uniform rules on the subject of bankruptcies throughout the United States." Correlated to this power of Congress is the prohibition of power on the States contained in a subsequent section⁵ in these words: "No State

⁴ R. S. of U. S., §§ 2165-2174. ⁵ Const. U. S., Art. I, sec. 10, clause 1.

Insolvency is inability to pay by reason of failure of assets. Bankruptcy is insolvency evidenced by certain acts. The creditor of an insolvent debtor may subject his assets to the payment of his debts, but if the debts be not paid the liability continues; and the liability for the contract debt cannot be discharged by the law of a State. In England, from which our laws are derived, and in other countries of the world, the condition of bankruptcy, which substantially involves insolvency, arose as a matter of history from the contingencies and failures of commerce and trade. It became the policy of commercial countries deeply interested in commercial enterprises, which added wealth and power to the nation, to release merchant traders from liability for debts incurred in their bold ventures, by a surrender of all their assets for the satisfaction, as far as they would go, of the debts of the bankrupt. It was held that the public had been interested in the great enterprises, and that the losses should not be visited too heavily upon the trader, who was the victim of misfortune. It was a part of the public policy, therefore, upon a full surrender of all his property, to release the bankrupt from prior liabilities and leave him free to enter upon a new field of enterprise.¹

As the citizens of each State were entitled to all the privileges and immunities of the citizens of the several States, the framers of the Constitution considered it a proper corollary from the power vested in Congress over foreign and interstate commerce that this bankruptcy principle should be vested in the common government of the Union, to prevent the States from establishing diverse rules of bankruptcy, which would affect differently the creditors and debtors throughout the country. To give to the common government the regulation of this subject of bankruptcy, by uniform rules, would, while denying to the States the power to impair the obligation of contracts, vest in Congress the power to impair the obligation of such contracts under a uniform

rule of bankruptcy. It does not follow, therefore, that, except by uniform bankrupt laws, Congress can impair the obligation of contracts any more than can any State. A State cannot, because prohibited; Congress cannot, because the power is not delegated. Indeed, the grant of qualified power to affect the obligation of contracts by a uniform law of bankruptcy seems likely to exclude Congress from the unlimited power to impair such contracts. (See ante, p. 508 et seq., the discussion of the legal tender question.)

In the adjustment of the powers of the States and of Congress in respect to the insolvent and bankrupt laws, there has arisen much learned controversy among the judges of the Supreme Court. It has been decided that a State may, by law, discharge the person of a debtor upon his surrender to his creditors of all his property. (The old ca. sa. law, under which the debtor's person was subject to imprisonment, is now everywhere abolished.) But it was decided at the same time that a State, while discharging the person of the debtor, could not discharge the debt or his obligation to pay it, because that would be a violation of the clause of the Constitution we have cited.¹ It has also been held that a State may absolve the future acquisitions of the debtor on such surrender of all his property to the claims of his judgment creditors. The creditor has forced the debtor to this surrender, and he must submit to the condition which the law allows to him of absolution of future acquisitions upon the surrender of his all.

But qu�re as to this. For the obligation of the debtor includes not only what he then has, but what he may thereafter acquire.² The leading cases on this subject are Sturgis v. Crowninshield and Ogden v. Saunders.³ Without going into an analysis of these decisions, it will be sufficient to say that they have been explained in Boyle v. Zacharic,⁴ and followed and sanctioned in later cases.⁵

1st. The power of Congress to pass bankrupt laws is not exclusive of State power to do so; but when Congress passes such laws they are paramount to all State laws. The power in exercise is exclusive; when dormant it is not; but no bankrupt law of a State which is so reserved to it when Congress does not exercise the bankrupt power can in any case impair the obligation of a contract. It may have a bankrupt system for the subjection of all the debtor's property to the payment of all his debts according to some uniform rule, so as not to discharge the obligation of the contract of the bankrupt with any of his creditors.

2d. But a State may, under such a bankrupt law, discharge the obligation of a future contract, but not a pre-existing one, and then only between its own citizens; because such future contract between its own citizens is held to be an obligation made with knowledge of such previously enacted law, and therefore subject to it. And such law cannot discharge a prior contract, though it may discharge the debtor's person; for his person is not part of the contract or its obligation. And so it has been held that a State may repeal a ca. sa. law as to prior contracts without impairing the obligation of such contracts, because the imprisonment of the debtor is a violation of his freedom, which cannot be considered to be a part of the essential obligation of the contract.¹

3d. But such a State bankrupt law, while it may affect future contracts between its own citizens, cannot do so as to contracts between its own citizens and those of other States, or between citizens of another State; because such a law, while presumably known to its own citizens when they enter into future contracts, cannot be known to the citizens of another State who may be parties to the contract.

Baldwin v. Hale, 1 Wall. 223; Baldwin v Bank of Newberry, Id. 234; Gilman v. Lockwood. 4 id. 409; Boese v. King, 108 U. S. 379; Brown

v. Smart, 145 id. 454; Butler v. Gorely, 146 id. 303. ¹ Beers v. Haughton, 9 Pet 328.

But even in this case the authorities decide that where any creditor, whether of the State or of another, makes himself a party to and takes a benefit under judicial proceedings conducted according to such law, he will be held bound by it, as assenting thereto, and the debtor under such future contract will be discharged. The whole argument is set forth in the cases above cited.¹

The bankruptcy system, regulated by the English law, and by all the laws of the United States prior to the Bankrupt Act of 1841, was based upon the rule of the right of a creditor "to throw a debtor into bankruptcy," but had never allowed the debtor to become a bankrupt on his own application. Involuntary bankruptcy was the system prior to that time; since that time in the United States there has existed voluntary as well as involuntary bankruptcy. In an ably argued case in New York,² the court decided that the voluntary feature of the bankrupt law of 1841, involving a principle hitherto unknown in the bankrupt laws of other countries or of the United States, was unconstitutional, because not the bankrupt laws within the contemplation of the Constitution. But that case was overruled by the cases in the Supreme Court above cited.

§ 272. The next clause of the Constitution is: "To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures."³

This power is correlated to the prohibition of the States coining money, or making anything but gold and silver coin a tender in payment of debts. By the Articles of Confederation the Congress had the power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States, and of fixing the standard of weights and measures throughout the United States.⁴ The present

Constitution excludes the power of the States to coin at all, and gives to Congress the coinage of money and the regulation of the value thereof; that is, of its own coin and of foreign coins, and the fixing of the standard.

So much has already been said on the nature of this power¹that it is only necessary to say that the power to coin money and regulate its value, when connected with the words "and of foreign coin," excludes all idea that this clause relates to paper money at all, or to anything but coined money. The first part of this clause, therefore, provides for the measurement of values in the coined money, which alone the States could allow to be used us legal tender; the latter to the regulation of articles of commerce by the standard of weights and the standard of measurement. These provisions look to the intimate union of the States in trade and commerce, and intercourse among themselves and between them and foreign nations. It is impossible to have the regulation of commerce by the Union without a like regulation of coinage, as the money which is the medium of such commerce and of coinage, weights and measures is essential to all. It is another proof of the wisdom of the men who framed it that the Constitution gave to the common government the complete management of those matters which concerned the business and commerce of the States external to each of them, while it retained to each State the exclusive control of everything that was a part of the internal polity.

Congress under this power has established mints, and made provisions in reference to coinage, and the metric system of weights and measures, the details of which need not be gone into; but a reference to the statutes is all that is necessary.²

§ 273. The next clause is in this language: "To provide for the punishment of counterfeiting the securities and current coin of the United States."

This is very briefly referred to by Mr. Madison in the Federalist. The language of this article is suggestive of the conclusions already reached in reference to its meaning. Mr. Madison says:¹ "The punishment of counterfeiting the public securities as well as the current coin is submitted of course to that authority which is to secure the value of both." The securities of the government are its obligations by bonds, notes, etc. The counterfeiting of these, as a distinct class of offenses from that of counterfeiting the coin, shows that there was no confusion in the minds of the framers of the

Constitution. This power is not exclusive. The States may punish the passing of the coin, notes or securities of the United States. Congress may protect its coin and securities against the assaults of the counterfeiter; but the States may protect their people from the personal loss suffered by any one to whom they are passed.²

§ 274. By the Articles of Confederation Congress had the power of "establishing or regulating postoffices from one State to another, throughout all the United States, and exacting such postage on the papers passing thro' the same, as may be requisite to defray the expenses of the said office."³Under this power Congress did establish, even before the Articles were adopted, postal arrangements throughout the States. Among the regulations of that period we note the following: Power by Congress to designate the posts by which mails may be carried, and the places through which they shall go; to make arrangements with European packets for conveyance of letters and the like;⁴ to prescribe the postage and the money to be received;⁵ to authorize the Postmaster-General to carry mail by stage carriages or otherwise, as he may think best; to form postoffices.⁶ The Postmaster-

² Cooley on the Constitution. 82. 83; Fox v. Ohio, 5 How. 410, 433; United States v. Marigold. 9 id. 560: Moore v. Illinois. 14 id. 13.

General was authorized to establish a line of posts and cross-posts as he shall deem best; the profits, if any, to be paid into the treasury, and if not enough, to be made good by the

United Colonies;¹ and the mails were regulated, with no power to stop or examine them, except by the Committee of Safety of each colony.² And disaffected persons excluded from any connection with the mails.

After the Articles were adopted an ordinance was passed in 1782 for establishing and regulating the postal department, providing for direct routes and.for cross routes where deemed necessary, and postal rates. And the ordinance referred to prohibited the carrying of letters by any others than employees of the department.³

The provision in the present Constitution is much more simple. The words used in the Articles of Confederation were "establish and regulate." The only word used in the Constitution is "establish." There is no difficulty in the construction of these words to "establish postoffices," etc., and they seem by clear implication to include not only the offices but the carriage of mail matter from office to office. The first question to be asked is, whether this power is exclusive, and does the grant of the power operate as a prohibition of it on the States? Mr. Hamilton⁴ lays down three tests, already referred to, of the exclusiveness of a power granted to Congress. 1st. Where the exclusiveness is expressed in distinct terms; 2d, where the grant is made to Congress coupled with a prohibition of it to the States; and 3d, where the power is given to Congress to establish a uniform rule, which would be defeated by the exercise of like power by the States. This power does not come under either of these three rules. It is not granted with a correlative prohibition to the States, nor is the idea of the term of uniformity expressed in the grant of the power. It would seem, therefore, to be clear that, if the power be not exercised, it may be exercised by the reservation of power in the States. If the power be exercised, however, it is per-

haps exclusive to this extent, that the exercise of the power by the State will, if in conflict with the due exercise of it by Congress, be subordinate to the Congressional law. And the Supreme Court, in Ex parte Jackson,¹ limited the power of Congress to the point of prohibiting articles which are legitimate mail matter from being carried over postal roads in competition with the postoffice department, but not as forbidding them to be sent by any other means as merchandise. This opinion would seem to leave to the States the exercise of the postal power where it does not compete with and thus interfere with the postal arrangements of the United States. And this view is sustained by the late case of In re Rapier and the case of Horner v. United States² in the same volume. So that it would seem that where the Postoffice Department refuses to carry any postal matter for any reason, the State cannot be prohibited from doing so through other media than the mails. Congress may establish and discontinue postoffices and post roads at will,³ and the department may change part of a road where it is impassable without changing the route.⁴

Congress has passed an act,⁵ amended in 1890,⁶ prohibiting the conveyance of obscene matter through the mails. In the cases supra, the Supreme Court decided that Congress can regulate the entire postal system of the country, and may designate what shall be carried in the mail and what shall be excluded, and punish the deposit in the office of any such matter as is prohibited by the statutes mentioned. And further decided that the object of Congress was not to interfere with the freedom of the press or any other rights of the people, but to refuse the facilities of the mails for the distribution of matter deemed injurious by Congress to the public morals, but that transmission of such matter so excluded in any other way would not be forbidden. But in Ex parte

¹ 96 U. S. 727. ² 143 U. S. 110; Id. 207. ³ Ware v. United States, 4 Wall. 617.

Jackson the court distinguishes between letters and sealed packages which are not open to inspection, and newspapers and the like left open for examination by postmasters; and held that no regulation in reference to personal papers and effects protected against unreasonable searches and seizures could be made except upon warrant issued upon oath or affirmation as is required under the fourth article of the amendments of the Constitution. These decisions give sanction to these laws. But it is fair to express a doubt whether the duty involved in the power of Congress to carry postal matter through the mails can be so regulated by law as to make it necessary and proper to exclude matter from the mails for its moral character, although if it be too bulky for convenient carriage, or if it contain germs of disease, it may be excluded as a regulation necessary and proper to be made by Congress.

To give to Congress the power to refuse to carry mail matter because its moral quality may offend against the sentiment of Congress involves a censorship over letters, postals and newspapers, which draws within the sphere of Congressional legislation that which belongs only to the police power of the States. Sealed letters may be searched on warrant. and unsealed letters and postals may be searched without warrant; and to prohibit the correspondence of the people and the transmission of documents might, by the exercise of this power by Congress, in effect debar the people from the privilege of the mails. This jurisdiction, it is obvious, does not touch the duty of transmission of matter, but touches the moral quality of the matter itself. But if what the States do not condemn as immoral, or what they do condemn by their own press, is to be made criminal by the law of Congress, and this power of Congress through the use of the mails becomes the paramount moral censor for the people of the States who may wish to use the mails, what is to be the effect of the transmission of matter through the mails which the State condemns and Congress sanctions? Can Congress under this power compel the postmaster to deliver

matter morally hurtful to people to whom it is addressed, though the State forbids its admission as a moral pestilence, or as the destroyer of the order and peace of society?

This question has not been decided by the Supreme Court. That court has decided that a private party cannot compel the Postoffice Department to convey any immoral matter through the mail, but the court has never decided that the department can carry that which the State holds to be immoral matter through the mail and deliver it to its citizens. Congress may refuse to touch the matter which it deems offensive or to permit its mails to be polluted thereby; but when it forces the State to receive into its society offensive matter which Congress does not condemn, or may even approve, is it constitutional? The question of physical and moral quarantine arises here, and, as applied to the commercial power of Congress, may be equally applied to the postal power of Congress. To the State, as we have seen, is confided the care of the physical and moral health of its people. This view has been sanctioned by the highest judicial decisions.

§ 275. An interesting opinion was given by Mr. Attorney-General Cushing, March 3, 1857, in which he held and advised the Postoffice Department, then under the control of Postmaster-General Joseph Holt, that where the mails were used as a medium for the transmission of incendiary matter inciting a portion of the people of a State to rebellion, the State had the constitutional power to prevent its reception by its people from the hand of the postmaster. Under this opinion the Postmaster-General acted, and allowed a judicial procedure under State law to determine whether the matter transmitted in the mails was dangerous to the peace and order and safety of society, and on such decision the postmaster was required to deliver the matter to the custody of the State, and its distribution was prohibited for the preservation of the safety of society.¹ The Attorney-General maintained with great ability that in such cases a law of Congress which forbade the operation of the police power

of the State in a matter which threatened the State with insurrection was a violation of the constitutional duty, because it incited to an insurrection, which by the Constitution the United States were compelled to suppress.¹

§ 276. In the latter part of the clause are inserted the words "and post roads." The establishment of postoffices may include the power to create them, if necessary and proper to carry out that power. The same construction applies to the words "post roads." It may involve the construction of roads, if necessary and proper for postal purposes. The practice of the government under the Confederation and under the Constitution has been to designate, and thus give legal sanction and status, to the roads of the States as the postal roads of the government. If there were no roads, they being absolutely necessary to the transmission of mail matter, to make a road under such circumstances would be a fair exercise of power. But to make a road for other purposes and with other intent than for postal purposes, under cover of this power, would be neither necessary nor proper, but a fraud on the Constitution.

It has already been pointed out that the proposition in the convention to grant the power of making canals was after full debate on its merits negatived by the vote of eight States to three.² In Pinckney's plan there were two propositions : "to establish postoffices," and further on "to establish post and military roads."³ The Committee on Detail reported only the proposition to establish postoffices. This would have left the matter substantially as it existed under the Articles of Confederation.⁴ Subsequently, on consideration of the clause "to establish postoffices," Mr. Gerry moved to add "and postroads;" carried, six States to five. The provision

a speech of the editor, made in the House of Representatives on the 11th of December, 1893 (2d Sess. 53d Cong., Vol. 20, Appen. Pt. I, p. 3 et seq.), will be found in full the opinions of Attorney-General Cushing and Postmaster-General Holt, in

the Yazoo City Postoffice Case, and that of the author, as Attorney-General of Virginia, in a similar case, as well as other matter bearing on this question.

for military roads was left out permanently. The fair construction of the whole clause, therefore, is that as the mails can only be carried on roads upon the land, the power to establish, not make or construct, post roads was intended simply to grant the power to make them if there were none already made, where roads were necessary for postal purposes. This question has been an open one and much debated for nearly a century. We have seen that Mr. Madison was decidedly in the negative on the question; and Mr. Monroe, in his celebrated message of 1823, sustained it, not on the ground of the independent power to make the roads, but on his construction of the power to appropriate money for the general welfare, under which he claimed that, while Congress could not make the roads, it could appropriate money in aid of their construction. The power to build the roads, where not for postal purposes, has therefore never been settled.

The Cumberland road was constructed almost exclusively with the money of the United States under the authority of successive acts of Congress. The States through which it passed authorized the United States to construct the road. The States subsequently took the road under their care, in so far as any part of it was in their domain, upon a contract with the United States upon a surrender of it to them by Congress. The State of Pennsylvania undertook to charge tolls upon the mail carriages passing over the road in that State. The court decided that such tolls were in violation of the contract between the United States and Pennsylvania, under which the State took possession of the road.¹ This case and those cited in the note do not involve at all the constitutionality of the acts of Congress appropriating money for the Cumberland road.

In the Sinking Fund Cases² the court held that Congress could enforce its contract with the Central Pacific road on its loan to it, irrespective of the constitutionality of the contract. The great transcontinental railways through the Ter-

1 Searight v. Stokes, 3 How. 151; Neil v. Ohio, Id. 720; Achison v. Huddleson, 12 How. 293.

ritories are defensible on the ground that Congress had the power of legislation over the Territories, which it did not possess in the States. It is true that Mr. Justice Bradley in one case^l uttered a dictum that Congress can build railroads under the commerce clause. But that question did not arise in the case. The question decided was that a State could not tax a franchise granted by Congress to build a road, this being a grant for postal and military purposes. To this California consented, thus yielding her eminent domain.²

The power of Congress to build a railroad, where necessary and proper for postal purposes or for military purposes, must be conceded as necessary and proper to carry out express powers granted to Congress; but it is quite another thing to claim that it has power to build it as a regulation of commerce.³

§ 277. "To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries."⁴

This is a new clause in the Constitution, not found in the Articles of Confederation. It will be noted that Congress has not an unlimited power to promote the progress of science and useful arts, but that the terms of the clause limit it to two objects. "By securing for limited times to authors and inventors," etc., it is obvious that in a Union where there was an intercommunication of the privileges and immunities of citizenship, the rights of authors and inventors, but for this article, in their respective States, would be of very little avail, and yet that the use of these writings and inventions would be general throughout the Union. It was natural, therefore, that this power should be given to Congress in order that authors and inventors might be protected in their

² Santa Clara Co. v. Southern Pacific Ry. Co., 118 U. S. 394; Pacific Railroad Removal Cases, 115 id. 1.

³ But see Luxton v. North River Bridge Co., 153 U. S. 525, and Lake Shore, etc. R. R. Co. v. Ohio, 165 U. S. 365.

exclusive right to their works and discoveries by patent and copyright laws. This has been a valuable provision, and has stimulated authorship and invention in this country to an unparalleled extent.

The cases upon this subject are too numerous to mention, but two may be referred to.¹ The late decisions of the court have confined copyrights and patents for inventions to works and inventions involving the intellectual concept of the inventor or author. A lithograph or photograph of an original conception may be copyrighted, but not a mere mechanical copy. The photograph of Oscar Wilde, giving pose, dress, etc., as the original conception of the artist is a subject of copyright, but a photograph or lithograph which is a mere copy of the original conception of another is not a subject of copyright.² The patent-right or copyright of an inventor or author does not give the right of use and sale in any State contrary to the police regulations of that State. A law of a State forbidding either is paramount to the patent-right or copyright conferred by Congress.³ Patent laws have no extraterritorial effect.⁴

Trade-marks are not included within this power; they are not inventions, but merely marks of ownership.⁵ Under this power the late international copyright law was passed, by which security in the use of such rights by authors and inventors in foreign countries is guaranteed upon a reciprocal security of use to our authors and inventors in the country to which the privilege is granted.

§ 278. The next clause to which reference will be made is as follows:⁶ "To constitute tribunals inferior to the Su-

¹ Wheaton v. Peters, 8 Pet. 591; Wheaton and Donaldson v. Peters and Grigg, Id. 667.

² Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53; Banks v. Manchester, 128 id. 244; Callahan v. Myers, Id. 617.

41; Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 103 id. 344; Cooley on the Constitution, 95, 96.

preme Court; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations."

The first branch of this clause may be read in connection with a clause under the judicial power of the Constitution,¹which reads thus: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." The Constitution itself constitutes but one court and that the Supreme Court. It leaves to Congress the liberty of constituting from time to time, as policy may dictate, all the United States courts inferior to the Supreme Court. And under this power, as we shall hereafter see, Congress has established circuit, district, intermediate appellate courts and court of claims, etc.

power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. Piracy is a "public crime, not against any particular State, but against all States, and the established order of the world." "Piracy is robbery on the sea, or by descent from the sea upon the coast, committed by persons not holding a commission from or at the time pertaining to any established State.''² "If the robbery be committed within the territorial jurisdiction of any nation it is not strictly piracy, and would be justiciable by the sovereign of the territory alone." A pirate is hostis humani generis; his crime is not local to a State, but as far as any one country is concerned against the property of its people on the high seas. For this reason the power is conferred on Congress to give equal protection to the property of all the States upon the high seas, and is not left to be defined and punished by the individual States.³

The precise nature of this crime needs some legal definition, and hence the power is given to define as well as to punish such piracy. Besides this, felonies may be com-

mitted on the high seas,¹ such as murder and the like, and when committed on a vessel of the United States would be properly cognizable by no one State, but by the representative of them all as protector of the vessel on which the crime was committed.

§ 279. The last clause gives to Congress like power to define and punish offenses against the law of nations. The wisdom of confiding this power to Congress is manifest. The Federal government is the representative of all the States in their individual relations with other countries. These relations may breed conflicts with other nations. The duty to protect by their armies and navies in case of collision is imposed on the Federal government; vesting in Congress as regards the conduct of war, in the President and the Senate as regards treaties of peace and amity. To have left this power to the individual States would have imposed on the Federal government the defense of each State against foreign invasion in any collision which their separate relations might bring about, thus burdening all with the peril and expense of war for the defense of each in its separate dealings with every other nation in the world.

Some years ago complaint was made by some of our South American neighbors that systematic counterfeiting of their public securities in the commercial marts of the United States was damaging their credit and their capacity to issue their genuine securities in the United States upon which to raise money. It was complained that the United States were, in effect, a harbor for these gangs of counterfeiters, and they asked for some redress or remedy. This resulted in the passage of a law denouncing this practice as an offense against the law of nations, because, under cover of the United States, it was an offense against the rights of other nations. The offense was defined and punishment imposed. In a case before the Supreme Court,² a conviction under this law was

¹ Two recent cases may be referred to as showing the scope of the words "high seas." Jones v.

affirmed. The considerations justifying this law and making it constitutional are fully stated in the opinion of the court. See also Report of the Judiciary Committee of the House of Representatives on that subject.¹

§ 280. The War Power of the United States may be comprehended under the next five clauses of the eighth section of the first article. They involve the following heads: To declare war; to grant letters of marque and reprisal; to make rules concerning captures on land and water; to raise and support armies; to provide and maintain navies; to provide for calling forth the militia; to make rules for the land and naval forces; and to provide for organizing, arming and disciplining the militia, etc. These clauses will be considered in order. The tenth clause gives to Congress the power to declare war.

§ 281. As an original proposition, a declaration of war is necessary to its existence; for by war the citizens of the two belligerent nations are quasi-enemies. All other nations must observe neutrality between them, and must recognize the rights of each, by warlike measures, blockade and the like, to put a check upon freedom of trade of the non-belligerent nations with either of those at war. Without some public announcement of this abnormal status between nations once at peace and now at war, great confusion might arise affecting the rights of nations other than the belligerents. In Greece and Rome, and even in the European countries in the Middle Ages, such public declaration was uniformly made, and was regarded as obligatory. But since the middle of the eighteenth century, formal declarations have not been universal and have fallen into disuse. This disuse of the formal declaration arises from the publicity and circulation of intelligence peculiar to modern times. Countries have their ambassadors at the different courts of the world, and in our day steam and cable make it impossible for a nation to en-

gage in war without the world's knowing it.¹ Still, President Woolsey states that the party entering into war is bound to indicate it by some public acts which will be equivalent to a public declaration, such as sending away an ambassador, non-intercourse, and the like. Furthermore, its own people ought to know that they have been made enemies, not friends, of the subjects of the belligerent enemy of their country. Neutrals have a right to know of the state of war, and are not bound to observe the duties of neutrals until notified.² The language of the Constitution was obviously adopted with a view to making public the important fact of the status of belligerency between the United States and any other country. But as declarations are merely a mode of notification, the fact of war may speak louder than words; and the language of the Constitution cannot be evaded by a change in the custom of nations which dispenses with a formal declaration, nor can the United States be thrown into war with another power through any other authority than that of Congress. The words "to declare" include the power to make war, with all the incidents of raising armies and navies which the Constitution has confided to Congress. It is well, therefore, to guard against the inference that, because the declaration of war is not now held necessary to constitute the status of belligerency, the President may plunge the country into war without that which is equivalent to a declaration of it by Congress.

The war with Mexico was never openly or in terms declared by the United States, but Congress passed an act the preamble of which read, "Whereas war exists by the act of Mexico," etc., which act was the invasion of the territory of a State; and the United States accepted the state of war as a fact without a formal declaration. But an act of Congress is necessary to create a state of war between the United States and any other country.

§ 282. The next clause runs, "to grant letters of marque and reprisal." It is sufficient to say of these words that they may permit the grant of public authority to persons who are not in the regular service of the country to exercise the public power of warring upon and capturing vessels of the enemy upon the high seas; giving rise to the habit of what is known as privateering. The authority of a privateer to exercise this war power is derived from the sovereign authority under which he acts. If he acts otherwise he is liable to the charge of piracy. Thus the policy of privateering, now very much inveighed against, was in the minds of the framers of the Constitution, because it enabled the militia of the seas to supplement the regular naval forces of the United States in conflicts with great naval powers. The issue of these letters is a part of the war power of Congress. It may be well to say that the power to grant these letters is denied to the States, and also the power to engage in war, unless actually invaded, etc. The power "to make rules concerning captures on land and water" vests in Congress the determination of the subjection of the property of an enemy to capture and condemnation. And in an early case^l it was held that the property of an alien enemy found in the United States could not be condemned as prize without an act of Congress to authorize it. This includes the power, through the establishment of prize courts, to regulate the method in which a capture shall be brought into our hands for adjudication, and the principles upon which it shall be condemned as lawful prize.

§ 283. The next clause grants the power to "raise and support armies." This no doubt means a regular force as distinct from militia, the calling forth of whom is provided for by a distinct clause. No limit is placed upon the size of the army, for the reason so often assigned by the authors of the federalist, that no limit could be assigned to the necessities of the country for defense. But an important limit is put upon the permanency of this army, which recalls the English check upon the power of the Crown as the declarer of war, ¹ The Thomas Gibbsons, 8 Cr. 421.

and as the generalissimo of the army. One of these checks is the peculiar form of the bill to raise the army, which gave it the name of the Mutiny bill (see ante¹); there being no similar provision in our Constitution. But the other British check is substantially embodied in this clause in the words, "But no appropriation of money to that use shall be for a longer term than two years." In England the term is one year. It was made two years by our Constitution because the term of service of the House of Representatives is two years. The forbidding of an appropriation for the support of an army for a longer period than two years makes it impossible for the President to use that army beyond that term for any illicit purpose, without the renewal of the appropriation by the two houses of Congress. It is a most potent check upon the abuse of power by the President as commander-in-chief, and was within the view of the framers of the Constitution, as appears from the strong statement of Mr. Hamilton in the Federalist,² which is worthy of insertion here: "The legislature of the United States will be obliged by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army; if they were even incautious enough to be willing to repose in it so improper a confidence." This being so, it is in the power of Congress to condition the grant of money for the support of the army upon terms which will secure its non-use by the President, even during the two years, for any purpose hostile to the liberty of the people.

The question arose under the Conscription Act passed by the Confederate Congress during the late war, whether it was competent for that Congress by conscription substantially to exhaust the material out of which the militia was composed. It was objected that this would make a standing army composed of the whole of the militia of the country,

and would leave to the States no armed force to resist its power. The Court of Appeals of Virginia decided there was, and could be in reason, no limitation put upon the size of the army which was to be raised, and that the objection to the law was not good.¹

§ 284. The next clause is, "To provide and maintain a navy." It will be seen that the two years' limit on appropriations for this purpose is omitted. A navy on the seas cannot be used, as an army on the land may be, for the destruction of liberty. The words used as to these two forces are different. The words "to raise and support armies" have not the idea of permanency in them, because there is the intimation that the army may be raised only when a contingency arises making it necessary. It involves the idea of raising it when needed, and supporting it while needed; but let it disband under the two years' limit if there be no need for it. But there is, in the words "to provide and maintain a navy," a very significant intimation of its permanency in maintaining it, that is, holding it in the hand. It is according to the genius of our Constitution, then, that while standing armies are to be avoided, the maintenance of a navy is to be favored.

The next clause, "To make rules for the government and regulation of the land and naval forces," vests in Congress, and not in the Executive, the framing of the rules and articles of war; for the government and control of the citizens who may be in the land and naval forces and for regulating their conduct. In this clause we may see the jealousy of executive power, and the favor to the representatives of the people, lest the rules and articles of war might be unduly severe and tyrannical.

§ 285. The next clause provides for calling forth the militia, and executing the laws of the Union, suppressing insurrection, and repelling invasion. This authorizes Congress alone to make provision for putting the militia of the country under the command of the President for the pur-

¹ Burroughs v. Peyton, 16 Gratt. (Va.) 470. As to enlistments, see In re Morrisey, 137 U. S. 157,

pose named in the clause, and this is made more clear by reference to a subsequent provision: "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States." The call is to be made under the provisions of an act of Congress. By an act passed in 1795 Congress gave power to the President to call out the militia for certain purposes, and by subsequent acts in 1807 power was given to him to be exercised whenever he should deem it necessary for the purposes stated in the Constitution; and the Supreme Court has decided that this executive discretion in making the call could not be judicially questioned.¹

It is perhaps proper that as the duty devolves on the President to see that the laws are faithfully executed, Congress should vest in him the power to call out the militia whenever he deems it necessary in order to execute the laws of the Union. His recent action in the city of Chicago has had judicial sanction in the Debs Case.² The power to suppress insurrection by a call upon the militia applies only to insurrections against the authority of the United States, for the reason that as to any insurrection against State authority a distinct provision is made.³ The power to call forth the militia to repel invasion grows out of the duty of the United States to protect each of them against invasion.⁴

§ 286. Congress is authorized "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions."⁵

This clause requires careful consideration. Under the Confederation, Congress, as we have seen, had no power to raise revenue, but was dependent on the States; and while

it had power to "build and equip a navy," it had no power to raise land forces, and could only make requisitions upon each State for its quota in proportion to the number of white inhabitants in such State, which requisitions should be binding; and thereupon the legislature of each State should appoint the regimental officers, raise the men, etc., who should then march to the place appointed by the United States in Congress assembled. Under this clause of the Confederation the States had the power only to appoint regimental officers in the Continental army so raised. The general officers were appointed by the United States. This did not touch the militia at all, the control of this force being left exclusively to the States. The Constitution of the United States, as we have seen, gave to Congress an independent power to raise an army and provide a navy; and it is interesting to observe that under the Confederation the power to build a navy was granted to Congress, while the power to raise armies is denied.

And furthermore, the power to appoint all naval officers was granted to Congress, and the power to appoint regimental officers in its own army was denied, leaving only a power to appoint general officers. Along with the power granted in the Constitution to raise armies and provide a navy, the power to appoint all officers of the standing army and navy was conferred upon the Federal government. This cured the vice of the Confederation by vesting in Congress a power independent of the State to raise the standing land and naval forces of the United States. Along with this we may note the prohibitions on State power. It is provided: "No State shall, without the consent of Congress ... keep troops or ships of war in time of peace ... or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."¹ This prohibition upon the States, it will be observed, only provided against the States keeping a standing army or vessels of war, but did not apply to the militia; and the prohibition related only ¹ Const. U. S., Art. I, sec. 10, clause 3.

to a time of peace; so that the State is left free to keep troops or ships of war in time of war. And furthermore, a State may not engage in war, unless actually invaded, or in imminent danger. That is to say, while not permitted to declare an offensive war, it is not precluded from engaging in war when actually invaded or in imminent clanger. The militia of each State, while liable to call under the power of Congress, is subject entirely to the State control, except as modified by the clause now under consideration.

But the jealousy of the States, while according independent power to Congress as to the regular army and navy, guarded their own control over the militia force by the fifteenth clause, special attention to which is now directed.

By reference to the fifteenth clause it may be seen that the precise power given to Congress over the militia is in these words: "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." (See also fourteenth clause, supra, and article II, section 2, clause 1, of the Constitution, and the fifth amendment to the Constitution.) The power of Congress to govern the militia is excluded, unless they are employed in the service of the United States, which leaves to Congress nothing but the power to provide for organizing, arming and disciplining the militia. This power, as appears from the debates, looked to the organization of the militia into divisions, regiments and the like, and to furnishing arms, which had always been done, and to establishing rules by which recruits were to be disciplined, involving tactics and the like. No control over the militia was given to the Federal government, except when that government might call them into its service for the purpose stated in the fifteenth clause. The latter part of the clause under consideration was confined to the reservation to the respective States in respect to the militia. That reservation is in these words: "The appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." The appointment of the officers

means all officers, general and regimental; so that the organization prescribed under the first part of the clause is to be put into effect by the State's appointment of the officers prescribed by Congress for the organization. The power to train the militia according to the discipline prescribed by Congress is exclusively reserved to the States. So that whenever the militia, as such, are called into the service of the United States, they come as a State organization, all of whose officers are commissioned by the State and hold under its authority.

§ 287. It is proper to add that the President is the commander-in-chief of this militia when called into actual service, and by implication is to be governed by the rules and articles of war for the regular forces by the terms of the fifth amendment. In confirmation of these views, a brief reference to the history of this clause in the debates of the convention may now be made.

In Mr. Pinckney's plan the power was to be given to Congress to pass laws for arming, organizing, and disciplining the militia.¹ In the report of the Committee of Detail that clause was left out, and the power to call forth the militia was alone retained. Later in the session Mr. Mason proposed that Congress should have the power "to regulate the militia." Subsequently Mr. Mason again proposed to give power for the regulation and discipline of the militia, reserving to the States the appointment of officers. Mr. Ellsworth strongly objected against taking the authority over the militia from the States, "whose consequence would pine away to nothing after such a sacrifice of power." Dickinson said: "We are come now to a most important matter, that of the sword.... The States never would, nor ought to, give up all authority over the militia." Sherman objected to the States' giving up on this point. Gerry said to surrender on this point would put upon the plan "as black a mark as was seen on Cain."² The question was referred to the Grand Committee. The committee on August 21st re-

ported the clause as it now reads in the Constitution, except that the words "to provide" are in the Constitution where the words "to make laws" were in the report.¹ On the 23d of August Mr. Sherman moved to strike out of the clause the last words, "and authority of training," etc. Ellsworth objected, and Sherman withdrew the motion. Mr. Madison moved to amend the clause so as to give to the States the appointment only of officers under the rank of general officers. Sherman and Gerry warmly opposed this. On the motion, there were ayes three States, noes eight States, Virginia dissenting from Mr. Madison's motion. The clause was then adopted as it now stands.² So that the power of appointing officers, reserved to the States, included general as well as regimental officers. The adoption of this clause in the form it now assumes is therefore a matter of great consideration, and was regarded as a matter of essential importance. The effect of it has already been remarked upon in a former part of this work. But the action of the framers of the Constitution in the reservation of this exclusive command of the militia to the States, subject to the provisional arrangement for organizing, arming and disciplining vested in Congress, gave rise to two articles in the Federalist, one by Madison and the other by Hamilton, which demonstrate that it was the purpose of the Constitution to give to the States a reserved military force with which they might by warlike resistance oppose the usurpation of power by the Federal government. Mr. Hamilton says:³ "But in a Confederacy, the people, without exaggeration, may be said to be entirely the masters of their own fate.... It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men as of the people at large. The legislatures

will have bettor means of information; they can discover the danger at a distance; and possessing all the organs of civil power and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.

"The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign enemy. And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the Federal army should be able to quell the

resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed and its resistance revive.... When will the time arrive that the Federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning."

Mr. Madison adopts the same course of reasoning, and, after estimating the probable size of the standing army of the United States, says:¹ "To these would be opposed a militia amounting to nearly half a million of citizens with arms in their hands, officered by men chosen from among themselves, lighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia

thus circumstanced could ever be conquered by such a proportion of regular troops."

These statements of two great writers, members of the Federal Convention, urging the ratification of the Constitution by the people of the States, are conclusive evidence to show that the power over their militia is reserved to the States, in order, in an exigency created by Federal usurpation, that with arms in hand they might defend their liberties against the power of the Federal government, and under the direction of their own State authorities. These clauses thus considered may be regarded as constituting the war power.

§ 288. The war power has been a fruitful source of adjudication since 1861 in respect to the events and consequences of the memorable civil war. The solution of the litigated question as a scientific problem rests at last upon the determination of the fundamental question as to the validity of the act of secession of the Southern States of the Union. If it was a constitutional act, two countries were created by it, which by the results of the war have been re-knit into one. Or was it an attempted revolution, which if successful would have made two countries, but which, having failed, is to be construed as an unlawful attempt to overthrow the original government?

The author will venture elsewhere in this work to state his own views on this subject. For the present he will consider the judicial decisions based upon the Federal theory of the war between the States, which involves the denial of the right of secession, the legal existence of the Confederate States, and recognizes the Union as restored upon the overthrow of an illegal insurrection against its authority. This restoration, even if not de jure, may be conceded to be de facto; and we may in a treatise of this kind take the adjudications of the restored Union as a judicial statement of the law of the country, without regard to the contrary views, which can have, in the result, no effect in any political sense, however interesting they may be regarded in the historic discussion of the subject.

Assuming then that the restored Union is rightful, and especially because of the new amendments adopted by the formal methods provided by the Constitution, we will proceed to consider the war power under the light of the decisions of the Supreme Court, with such candid criticism upon them as shall be proper from their standpoint as to the historic questions involved, putting out of view what may be characterized as the secessionist views of the Southern States in their withdrawal from the Union in 1861.

The leading cases upon this subject are the Prise Cases.¹The question involved was, whether or not certain vessels were liable to capture for violating the blockade proclaimed by the President of the United States before the recognition of a state of war between the United States government and the Confederate States by an act of Congress. The court, five judges concurring and four dissenting, held that the civil war between the United States and the Confederate States gave to the United States the same rights and powers that they could exercise in a foreign war, and that they have the right jure belli to institute a blockade of any ports in possession of the Confederacy; that the proclamation of the President was conclusive evidence that a state of war existed, which authorized a recourse to blockade. The dissenting judges held that until the act of Congress recognized the existence of war, the power to blockade the ports of the Confederacy arose and could be instituted by the President under his power as commander-in-chief. All the judges concurred in holding the act of Congress valid, and the blockade a legal means of conducting a civil war; and all agreed that the so-called insurrection of the Southern States had assumed the proportion of a civil war, which existed in constitutional contemplation after it was recognized by the act of Congress on the 13th of July, 1861; and that the President did not possess the power to declare war or to recognize its existence and then order a blockade. The point at issue between the judges of the court was, whether or not the status of war ¹ 2 Black, 635.

could be created in any other way than by Congressional recognition, whether the war was foreign or civil. The majority held it could, and went so far as to hold that the proclamation of blockade was at once a constitutional institution of the status of war, and the exercise of a power resulting from that status. It may be conceded that the President as commander-in-chief may institute a blockade as an act of war, but whether he can declare or institute war is a different question. That is for Congress.

It may be noted that to blockade a port of a State of the Union is a clear violation of the Constitution, even by act of Congress. It violates the clause which declares, "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another."^l But it is claimed that it could be done under the war power. The Confederate State, being a quasi-foreign State, was held to be subject to blockade, and not subject to the above clause in reference to preference, etc. It would seem to be a great stretch of power to suppose that the President could do this without an act of Congress, when he had no power either to regulate commerce or to declare war.

§ 289. It may be stated as a result of the decisions of the Supreme Court, to use the language of Chief Justice Waite in the case of Lamar v. Brown,² that "It is quite true that the United States, during the late war, occupied a peculiar position. They were, to borrow the language of one of the counsel for the plaintiff, both 'belligerent and constitutional sovereign; but, for the enforcement of their constitutional rights against armed insurrection, they had all the powers of the most favored belligerent. They could act both as belligerent and sovereign. As belligerent, they might enforce their authority by capture; and, as sovereign, they might recall their revolted subjects to allegiance by pardon, and restoration to all rights, civil as well as political. All this they might do when, where, and as they chose." Chief

Justice Waite, in the case of Texas v. White,¹ said: "The ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation of law. The obligations of the State as a member of the Union, and of every citizen of the State as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation. Our conclusion, therefore, is, that Texas continued to be a State, and a State of the

These cases placed the citizen of the Confederate States in a double relation to the government of the Union. He was recognized as a rebel to its authority, but at the same time as a public enemy to his country. For civil, criminal and municipal purposes they were citizens; for confiscation of property they were not entitled to due process of law, being public enemies. All the rules of public war applied to their condition. Their property might be seized by the most rigorous laws of war; they might be subjected to the forfeiture of their property, as if convicted traitors, without trial or conviction. The punishment for treason might be inflicted in the forfeiture of their property because they were guilty of treason, and they were divested of the rights of trial guarantied by the Constitution because they were public enemies.

It is obvious that, if either theory be adopted as the correct one, the results must be absolutely inconsistent. It was only by treating them in the double aspect of public enemies, sub-

ject to the most rigorous laws of war, now disused, however, and as guilty of treason to their country, that the penalty to which they were subjected could be held to be properly inflicted. If the Confederate was not out of the Union, how could his property be forfeited without trial and conviction of treason? But confiscation without trial or conviction was held constitutional.

In Miller v. United States,¹ the stocks owned by Miller in railroads and other corporations were libeled in behalf of the United States and his property confiscated, he having been a resident of Virginia during the war. He did not appear, nor did any one for him; but it was proved ex parte that he was an adherent of the Confederacy. The judgment of confiscation was sustained by the Supreme Court, Justices Field and Clifford dissenting. The court held that so much of the acts as were in the exercise of the war powers of the government were not subject to the fifth and sixth amendments of the Constitution, which required indictment by grand jury and trial by petit jury before confiscation; that they were not to be considered as the exercise by the government of its municipal power; and that in the war of the rebellion the United States had belligerent as well as sovereign rights. They had a right, therefore, to confiscate the property of public enemies wherever found, and also the right to punish offenses against their sovereignty. They might be treated as public enemies or as rebellious citizens. So in the case of Mrs. Alexander's Cotton? the property of Mrs. Alexander was seized and confiscated, because of her residence in rebel territory, under the Captured and Abandoned Property Act.

By the act of July 17, 1862,³ and of August 6, 1861,⁴ Congress provided for the confiscation of property used for insurrectionary purposes and for the confiscation and sale of the property of rebels. In Miller v. United States, supra, these laws were held to be constitutional.

Contemporaneously with the act of July 17, 1862, a joint resolution was passed, at the instance of President Lincoln, providing that a forfeiture of the real estate of the offender should not extend beyond his natural life, because contrary to article III, section 3, clause 2, of the Constitution, which provided that no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. This resolution was held in Wallach v. Van Ryswick¹ to leave the estate in remainder after the death of the offender to pass to his heirs, and that the joint resolution qualified the act of July 17, 1862, but did not defeat it. Wallach conveyed a lot in fee simple to the purchaser at the confiscation sale in 1866, and the court held that the deed did not convey the remainder in fee.

In the case of Railroad Co. v. Bosworth,² the court decided that despite the condemnation decreed under the said act, such a right in the remainder was vested in Bosworth that he could dispose of it after receiving a full pardon from the President. This case was different from Wallach v. Van Ryswick, because of the fact that Wallach in that case had made a deed before pardon, which was ineffectual to convey any right against the claim of his heirs. In the latter case the conveyance was made after pardon, which wiped out his offense and all of its consequences, and restored the title to him in fee simple. But in Jenkins v. Collard³ the deed was made before pardon, but with a covenant of seisin, and a warranty against the lawful claims of all persons whomsoever. The court held that the warranty estopped the heirs of the grantor from claiming against his deed.

In the case of United States v. Dunnington,⁴ the doctrine was affirmed that under the act of July 17, 1862, and the joint resolution aforesaid, the forfeiture operated upon the life estate of the offender, the fee remaining in him after the confiscation, but without power of alienation until his dis-

ability was removed; and that the deed, as in Jenkins v. Collard, made prior to pardon, with warranty against the claim of the heirs, was operative against the heirs after the disability was removed by pardon.

Another class of property was seized during the war under the name of "captured and abandoned property," which was seized and sold under proceedings defined by the act of March 12, 1863,¹ and the proceeds paid into the treasury and held in trust for the owners who proved loyalty before the Court of Claims. In the case of United Slates v. Klein² the court held that this act did not confiscate or absolutely divest the title of the original owner, even though disloyal. The government constituted itself a trustee for those who were lawfully entitled to it, and it was held that a pardon wiped out guilt and all its consequences.³ After pardon a disloyal person could recover the fund in the treasury as if he had been originally loyal.⁴

§ 290. These various acts of Congress which forfeited the property of disloyal citizens of the United States, except in the single case of the forfeiture of real estate, which was qualified by the joint resolution referred to so as only to operate for the life of the offender, were all effected by ex parte proceedings against the owners, either as belligerent citizens of the public enemy, or as citizens of the United States subject to the penalty of forfeiture without trial under the Constitution of the United States. And while the condemned person was subjected to the forfeiture of realty only, according to the terms of the Constitution, the forfeiture of all other property was without any such qualification, being absolute forfeiture without trial or conviction. These acts were decided to be constitutional by the Supreme Court, and without any dissent. Without controverting these judg-

³ Ex parte Garland, 4 Wall. 380; Railroad Co. v. Bosworth, 133 U. S. 103; Jenkins v. Collard, 145 id. 546.

ments of the court, it may be questioned whether they would be held to apply in ordinary insurrections, or in any case of insurrection which did not assume the form of a powerful and well-established de facto government ruling exclusively within its territorial boundaries.

Another class of questions may be noticed as of great interest. All acts of the government of the Confederacy in aid thereof, as the issue of notes, bonds and the like, and acts of sequestration against citizens of the loyal States, were held to be absolutely null and void;^l and all acts of any State of the Confederacy in aid of the rebellion as above mentioned were also held to be null and void.

But acts affecting merely the private rights of persons living in the Confederacy, as marriage, divorce, proceedings in courts, judgments, and laws for the order and peace of society, by the several States of the Confederacy, were held to be valid. Thus, in Thorington v. Smith² the court decreed the specific performance of a contract for the sale of land in Confederate notes. This results from the fact that the seceded States were still States, Bodies-politic, and not out of the Union.³ The acts of the Confederate States courts were held to be nullities, but not the decisions of the courts of the Confederate States individually.⁴ A law which allowed notes for money to be solvable in Confederate money was held valid, and the notes could be recovered on for the scaled value in real money;⁵ but it was held that a law which allowed the recovery of the real value of the article sold, and not its scaled price, impaired the original contract, and was void under article I, section 10, clause 1, of the Constitution.

¹ United States v. Insurance Cos., 22 Wall. 99; Stevens v. Griffith, 111 U. S. 48.

⁴ United States v. Insurance Cos., 22 Wall. 99; Stevens v. Griffith, 111 U. S. 48.

⁵ Gavinzel v. Crump, 22 Wall. 308; Stewart v. Salamon, 94 U. S. 434; Bissell v. Heyward, 96 id. 580.

During the Civil War there were gross violations of the constitutional rights of northern citizens by the military power under the sanction of the President, when citizens were held to trial by court-martial for what were called acts of disloyalty or rebellion.

In Vallandigham's Case¹ the prisoner was tried by a military commission at Cincinnati, Ohio, for an offense declared and defined by a military officer, among other things for the habit of declaring his sympathies with the enemy. For this latter offense and for uttering disloyal sentiments he was arraigned and tried. The prisoner plead to the jurisdiction, and asked to be allowed to call witnesses, which he did. He was convicted and sentenced to close confinement in a prison of the United States, there to be kept during the war. This was confirmed by the commanding general. The President commuted the sentence to an order of banishment beyond the military lines of the United States. The prisoner applied for a certiorari before the Supreme Court of the United States. He claimed the right of trial by jury, and further claimed that the conviction was wrong because the offense charged was not known to the law of the land. The court decided that it had no jurisdiction to issue a certiorari, and therefore denied the writ, and the sentence was enforced.

In Milligan's Case² the prisoner was tried by a military commission and sentenced to death. He was a citizen of the United States, and the alleged crime was committed in Indiana. After the war he sued out a writ of habeas corpus before the Supreme Court of the United States, which discharged him, five of the judges holding that Congress had no power to subject him to such trial, and four of them, while holding that Congress had such power, decided it had not exercised it by law.

The Civil War closed, as far as hostilities were concerned, in 1865. The armies of the South surrendered in the spring and early summer of 1865. The Union was restored. The State of Virginia, whose restored government under Gov-

ernor Pierpont was recognized by the government of the United States, took possession of the executive government in Richmond. The Court of Appeals and the Legislature under the Constitution of Virginia assembled and performed their respective duties; but the Supreme Court of the United States, in a number of cases, referred to the question as to when the war should be held to have closed. In The Protector¹ it was decided that the war began in different States at different dates, and was closed by the different proclamations of the President. In that case it was held that it closed in Virginia and other States, including Alabama, by the proclamation of April 2, 1866, and in other States, embracing Texas, as late as August 20, 1866, and that the war had begun in the different States by the two proclamations of President Lincoln in April, 1861. Thus by the power of the President the war was not closed until about a year after hostilities had ceased.²

§ 291. In 1867 Congress passed the Reconstruction Acts, by which the government of the State of Virginia, already recognized as the legal government of Virginia by the Federal authorities, with the governments of all the other States, was superseded as not being republican according to the Constitution. Under this sweeping act the seceded States were governed by military officers of the army, and parties were arrested and tried by military commissions. The Supreme Court of Virginia and other courts were succeeded and displaced by judges appointed by military authority.

Generals Ord and Gilham ordered the arrest for trial under the alleged authority of the Reconstruction Acts of a certain McCardle, on charges of disturbing the public peace, inciting to insurrection, libel, and impeding reconstruction. McCardle sued out a writ of habeas corpus before a Circuit Court of the United States, which adjudged the petitioner to be remanded to the custody of General Gilham, and from that judgment he appealed to the Supreme Court of the United

States. The Supreme Court affirmed its jurisdiction upon the appeal from the decision of the Circuit Court and refused to dismiss the appeal. The case was held for consideration upon its merits, but by an act passed in March, 1868, Congress repealed the former act under which the Supreme Court had asserted jurisdiction in the case on appeal. Upon argument the court decided that its previous jurisdiction on appeal in this case had been taken away by the said act of Congress, and thereupon McCardle's case was dismissed for want of jurisdiction, and the decision of the court below operated to remand him to the custody of the military. The validity of the Reconstruction Acts was never passed upon by the Supreme Court in any case, and the result was that the military power was in full force in all the seceding States until the year 1870.

The author feels justified in stating that the Reconstruction Acts would never have been sanctioned by the Supreme Court if a case which brought the question before it for adjudication had arisen. The unlimited military power of the President under those acts subjected the Southern citizen to trial, in time of peace, without a jury, before military commissions, and the proclamation that the war had closed in 1866 made the Reconstruction Acts of 1867 unconstitutional. The restoration of the Union made it unconstitutional to charge any citizen of the South with crime or subject him to trial, except according to due process of law by indictment, presentment or other criminal proceeding in the civil courts of the country, and by a trial by a jury of his peers before such court.¹

§ 292. The next clause for consideration is that which gives power to Congress² "To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all

State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings."

It will be noted that the language is that Congress shall exercise exclusive power, not absolute. The limitations upon the power of Congress, express and implied, fully apply. Congress has power, subject to these limitations, to exercise all legislation proper within the District of Columbia. States legislate under their reserved powers exclusively within the States; but the territories ceded under this clause to the United States are subject to the exclusive legislation of Congress. It is further to be noted, that while Congress may acquire this territory for governmental purposes and the like, it has no power to exercise exclusive legislation until such territory is acquired as a matter of title to land, and is ceded by the States in which it lies as to all jurisdiction.¹

Congress may buy property, or condemn it for public use, under the fifth amendment of the Constitution, and when acquired for Federal use it is exempt from State taxation. But Congress cannot have exclusive jurisdiction for legislation except by cession from the State where the land lies.² In the case referred to in 135 U. S. Reports, the government had built a fort within the Territory of Kansas, and held it as being a part of that Territory, subject to its control. After the admission of Kansas into the Union, the question arose whether Congress had jurisdiction to legislate within the limits of this fort. The Supreme Court decided that upon the admission of Kansas the jurisdiction to legislate had passed to the State, and that Congress had never acquired the right to legislate except by the consent of the new State as to this fort so established by Congress prior to its admission.

§ 293. The nature and extent of this power over the District of Columbia may now be considered. The language of the clause is, "over such district as shall be acquired by

¹ People v. Godfrey, 17 Johns. 225; Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 528, 538.

Congress, with the consent of the State, for a 'seat of government.'" Congress did so acquire the District with the consent of the States of Maryland and Virginia.¹ The District is its habitat, its home.

Under the next clause of the Constitution Congress has power to pass all laws necessary and proper to carry into effect the powers granted by the seventeenth clause. It therefore has the power to do what is necessary and proper to fit the District as the home of the government of the Union. Its power to do so is exclusive, because all State power over it is surrendered. Hence Congress may do within the District what a State may do for a like purpose within its territory, namely, all things necessary for keeping it well fitted for a seat of government. A large part of Washington, its streets, etc., belong to the government. To make the city a suitable home for the government, it may lay out parks, erect buildings for government use, place fitting adornments, statues, pictures, etc., and may further incorporate banks and other institutions by municipal law, as a State may do within its own territory; may establish asylums for its poor, for its blind and deaf, and may establish schools and colleges for the benefit of the people of the District, just as a State may do for the use of its own people. The limitation upon the power of Congress to do this is, that the purposes in view must be necessary and proper for its own use and for that of the people of the District.²

Furthermore, as Washington is a seat of government for all the States of the Union, it should be kept for their equal benefit. It is the seat of government to which citizens from all the States may come, and to which the members of Congress and the officers of the government are required and entitled to come. For this reason it was a mooted question, and one never decided, but held with great tenacity by many, ' that their family institutions and servants (slaves in the old time) could be brought by officers, senators and representa-

tives from their respective States for their use while residing in the District of Columbia.

Congress after the formation of the District perpetuated the laws of Virginia and Maryland in the parts respectively ceded by those States. Thus Maryland had before the District was formed a law forbidding slaves to be brought into it from any other State. It was held that this inhibition against slaves being brought into Maryland applied to that part of the District, and that a slave was freed by removing from the Virginia to the Maryland part of the District.¹ A citizen of the District is not a citizen of a State within the jurisdictional power of the courts of the United States,² and a citizen of the District loses some of the civil as well as the political capacities which belong to the citizens of the States. The same jurisdictional and exclusive power, where ceded by the States, belongs to Congress over forts, and other places acquired for necessary buildings, etc.

§ 294. The words used in this clause, that Congress shall have power "to make all laws, which shall be necessary and proper,"³ etc., have been already so fully explained, as to powers which may be implied as necessary and proper, that they need not be especially referred to here.⁴

Congress shall have power to make all laws which shall be necessary and proper to carry into effect, 1st, "the foregoing powers;" that is, those already enumerated in this article, and especially in this section. It seems proper to call this the co-efficient power, because it is a power which, in conjunction with the enumerated powers, is essential to make them efficient. Like an algebraic co-efficient, it may therefore be termed a co-efficient power. The laws necessary to collect revenue, to borrow money, to regulate commerce, to

² Const. U. S., Art. III, sec. 2; Hepburn v. Ellzey, 2 Cr. 445; Barney v. Baltimore, 6 Wall. 280.

⁴ Federalist, No. XXXIII; Cooley on the Constitution, 91, 97, and ante, on Canons of Construction.

establish postoffices, and the like, are passed in the exercise of this co-efficient power, because the power in its abstraction, without some such legislative machinery, would not be effectual. These words apply by fair construction not only to the strictly foregoing powers, but to all the powers vested in Congress, and which may be regarded as the foregoing, because the first clause of the first article vests in Congress all legislative powers "herein granted."

2d. The co-efficient power to make necessary and proper laws applies to all powers "vested by this Constitution in the government of the United States;" 3d, "or in any department;" 4th, "or officer thereof;" that, is of the United States. This makes this co-efficient power very comprehensive. This device of legislative machinery for carrying into execution legislative power is not in the same way given to the government of the United States as a government, nor to the judicial or executive department of the United States nor to any officer thereof.

These last three divisions have no self-sufficient power. The powers vested in them need co-efficient machinery to carry them into effect, if the Constitution does not give them power by their own action to carry their granted powers into effect. If powers are to be implied, or if action is to be taken by any of them, they must look to the legislative department to devise the methods and machinery by which it is to be done. This view of this clause was taken with great power and clearness by Mr. Webster and Mr. Calhoun sixty years ago in the discussion of the exclusiveness of the legislative authority in making efficient the executive power without action on the part of the executive; and the decisions of the judiciary department have always maintained that its jurisdiction, the limits upon it, and the mode of exercising it, must be determined by a rigorous construction of the law vesting the jurisdiction, etc., and not upon inferential or implied powers of the courts themselves. This makes the government not only the government of the Constitution as to the delegation of powers, but a government of laws as to the

means necessary and proper for carrying these powers in the several departments into full execution.

Having thus examined with care and fullness the enumerated powers of this eighth section, it is proper now to consider some other powers vested by the Constitution in Congress in other clauses than this particular section.

§ 295. "New States may be admitted by the Congress 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 Congress."^l

A sketch of the condition of things in respect to matters in this section will not be out of place. An immense western domain belonging chiefly to Virginia, but in respect to which there were claims by other States, stretched to the west of the Alleghanies. Virginia, during the Revolution, had, by the genius and valor of George Rogers Clarke and his men, not only secured Kentucky on the south of the Ohio, but planted the flag of Virginia on the British posts in what is now the State of Illinois, and captured the Governor of that region and his command and sent them prisoners to Richmond. Great uneasiness had existed among many of the States after peace at the possession of this immense territory by the Commonwealth of Virginia. Accordingly, in 1784, in accordance with an act passed by her General Assembly October 20, 1783, she conveyed the whole of that territory to the United States, in Congress assembled, upon condition that it was to be laid out into five States. The deed was executed on March 1, 1784.² During the session of the Federal Convention on the 13th of July, 1787, the Congress of the Confederation, after debate, adopted an ordinance for the government of the territory of the United States northwest of the

river Ohio.¹ It was adopted with but one dissentient, Mr. Yates of New York, and by the unanimous vote of eight States, Virginia being unanimous and included among the eight.

In that celebrated ordinance, six articles were inserted to be considered as articles of compact between the original thirteen States and the people of the said territory, to remain forever unalterable, unless by common consent. In the sixth of these articles was a clause which forbade slavery in said territory, and provided for the surrender of fugitive slaves escaping into the same from any one of the original States.

The fifth article provided for forming from said territory not less than three nor more than five States, and the boundaries of the States were to be fixed by the articles "as soon as Virginia shall alter her act of cession to consent to the same." And further, the said fifth article provided that any of said States might form a permanent Constitution and State government, provided the Constitution and government was republican, and "conformed to the principles contained in said articles;" one of which articles so mentioned, the sixth, had a provision prohibiting slavery. Thus it appears that the distinct consent of Virginia, as the grantor in the deed of 1784 to this territory, was requisite, not only to the change of boundaries proposed, but also to the clause prohibiting slavery.

The General Assembly of Virginia, on the 30th of December, 1788, reciting that the Congress of the United States had declared the following as one of the articles of compact between the original States and the people of the States of said territory, recited the fifth article, before referred to, and consented to the said article of compact, and ratified and confirmed it against anything to the contrary in the original deed of cession; and thus ratified and confirmed the provision so as to ratify the articles of compact for the admission of such new States, when their government and Constitution should be republican and in conformity to the principles contained in these articles; that is, in the ¹ 12 Journal of Congress, 58-63.

sixth fundamental article in the Ordinance of 1787. History shows that the States represented in the Congress of the Confederation, at the instance of Mr. Carrington, a prominent Virginia member, put into the Ordinance of 1787 the clause prohibiting slavery, not so much as an act of Congress, but as a fundamental compact between the States who were represented in Congress in respect to the new States to be formed out of the northwestern Virginia territory. In so far as it was an act of Congress it claimed no validity, unless Virginia, the grantor of the territory, consented. Virginia did in terms consent, and with her own hand put upon the Northwest Territory and the States created out of it the character of free States, in which slavery was never to exist.

This transaction not only estops the other States to deny the exclusive and paramount title of Virginia, but estops all others and Virginia to deny that by her own sovereign act as owner of the territory she consented that it should be free territory forever thereafter. It will be found from the learned opinion of Chief Justice Taney in Dred Scott v. Sanford,¹ concurred in by Justices Wayne, Grier, Daniel, Campbell and Catron, in all six judges out of nine, that these historical views are fully sustained, though it does not bring out the point, so necessary, of Virginia's consent to the prohibition clause of the articles, and of her unqualified consent to it as a condition of the change proposed. The act was not an act of Congress under the Articles of Confederation, but an act of the several States, Virginia consenting, to the establishment of this ordinance.

§ 296. It will be noted that the ordinance was passed during the sessions of the convention. On the 18th of August, 1787, up to which time no provision in respect to the territory of the United States having yet found a place in the proposed Constitution, Mr. Madison proposed to give Congress power "to dispose of the unappropriated lands of the United States," and "to institute temporary governments for new States arising therein." This was referred to a com-¹ 19 How. 393.

mittee, and offered in the report of the Committee of Style on the 12th of September very much in the form finally adopted in the Constitution. At the final adoption of the Constitution, the territory ceded by Virginia belonged as common property to the Confederated States. The grant of power in the clause of the Constitution under consideration was designed, therefore, to empower Congress to dispose of, and make rules and regulations respecting, this territory. The joint beneficial ownership of the States would be held in the hands of Congress, under constitutional grant. The whole language of this article was obviously framed to meet the case of the territory of the United States acquired as aforesaid, and this seems to have been the idea of Congress in the passage of the act of August 7, 1789.

The meaning of these clauses may now be considered. The deed of Virginia looking to the sale of these public lands, and also to the formation of new States to be admitted into the Union, and the Ordinance of 1787, point directly to these conclusions :

1st. That the sale of the lands for revenue purposes, and needful rules and regulations respecting the management thereof, as well as property other than this, should be provided for by Congress.

2d. That as the territory belongs in terms to the United States, and Congress has the power to dispose of and make rules and regulations concerning it, this power must be directed to the interests of the co-owners.

3d. That as Congress is vested only with a trust power to manage said territory for the benefit of the co-owners, all legislation concerning it must be directed to that purpose.

Some interesting questions have been raised in our history, and, while practically settled in the affirmative, it is proper to consider the constitutional grounds on which they have been settled.

§ 297. Can the United States acquire new territory under this Constitution? The affirmative is sustained by a number of considerations.

power to acquire by treaty, or conquest or cession. It would seem reasonable, therefore, when all confided their several powers over foreign relations to the Confederated Congress by treaty, war and the like, the implication would be natural that it could acquire by treaty or conquest. The settlement of boundaries would involve this as an incident, even if it was not expressly given.

(b) The Congress of the Confederation without any express power did acquire large territory from the States, and the final ratification of the articles by Maryland was conditioned on the cession of her territory by Virginia.

(c) The eleventh article provided for the admission of Canada into the Union, and for any other colony, if agreed to by nine States. The Constitution itself by this clause sanctioned the previous power of acquisition, and could not be held to disaffirm the same power to the new government against the treaty-making power so vested in the present government, and without restriction. The power to acquire by treaty was the usual use of the treaty-making power, and without a negation would at least give ground to believe that such was the purpose of its framers.

(d) The history of the clause is very instructive upon this point. Mr. Randolph's proposition was that States "lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise," etc., might be admitted.¹ In Pinckney's plan there was a general power to admit new States into the Union on the same terms with the original States.² Randolph's proposition, after discussion, was not changed, and the admission of new States was limited to those "arising within the limits of the United States." After further discussion this clause in Randolph's plan retained the previous form.³ And Rutledge, from the Committee of Detail, reported to the convention the same form for the clause. This article was reported and discussed on August 30th, when various amendments were proposed, several of which were

directed, as Mr. Madison reports, to saving to Vermont the right of admission, though it was claimed to be a part of New York. Vermont had never been a part of the Confederation. Mr. Martin then proposed a substitute under which new States might be erected within, as well as without, the territory claimed by the several States, or either of them. Mr. Morris's proposition then took this form: "New States may be admitted by the Legislature into the Union; but no new State shall be hereafter formed or erected within the jurisdiction of any of the present States, without the consent of the legislature of such State, as well as of the general Legislature." This was intended to embrace the case of Vermont, because she had been already formed into a State; and so it stood.¹ The Committee of Style reported the amended plan, only modified by striking out the word "hereafter" after the words "new States," as being unnecessary;² and so the clause was finally adopted. It is clear, therefore, that after very earnest debate, the limitation of new members to be admitted to the Union to those framed out of territory within the limits of the United States was stricken out, leaving it without limit for the admission of States out of what ever territory remained.

(e) The correspondence of that day, and even the debates of the convention, show that the navigation of the Mississippi, which was not within our borders, except "ad medium filum aqu�," was a matter to which the founders of the Constitution looked with great interest.³ It is hardly conceivable that the framers of the Constitution excluded the States from the navigation of the Mississippi, especially as its mouth was in the hands of the enemy.

(f) Another question concerned the scope of the power as to the needful rules and disposition which are prescribed in the clause. Territory is not only landed property, but its chief use to the people who own it is as a domain for colonization. This is obvious from the language of the deed of

cession by Virginia, and from the purpose to form States of the Union out of such territory.

§ 298. Again, we have seen that pending the session of the convention, in July, 1787, the Confederation Congress passed the Ordinance of 1787, which showed what was deemed necessary not only in the disposition of the property, but in the organization of the territory for settlement and colonization. This trust as to the land as property, and as the seat of civilized life, was intended by this clause to be the disposition and regulation of the territory prescribed in this clause. The view is strengthened by the associated clause as to new States. Congress was to admit new States formed out of this very territory, for which the ordinance had been passed. Congress, as the trustee for the States, may dispose of the property as a common fund for the United States, as provided for in Virginia's deed of cession. But it must do more; it must so rule the territory as a domain for colonization by all the States, who are co-owners, as to enable them to form civil Bodies-politic, self-sufficient and autonomous, to enter into the Union as free States and co-equal members. Congress could exercise a double power: that of regulating the property and that of aiding the communities who had bought and settled upon it, to organize Bodies-politic for the government of their society. Scattered over this territory, how can the embryo societies organize themselves without the superintending aid of those to whom the territory belongs? Can any one State do this? That would be to exclude the power of others equally entitled. Can all do this as separate distinct States undertaking to do it together? That is impracticable. Who must do it? The organ, the trustee of the States under the power granted to them by the Constitution. And by the terms of this clause, as the mere property right does not reach the case, then the right and duty of admitting these communities, when completely organized as States, into the Union, makes the duty of Congress to control them by its governmental power an inevitable inference. If this were not done, the temporary

squatters upon the territory would have to improvise an organization, and regulate the affairs of the territory according to their own will. This course of reasoning has led to a conclusion which has had the largest judicial sanction. The power of Congress to govern the Territories of the United States, whether or not based on the same course of reasoning in all cases, has been adopted as an undoubted conclusion.¹This being so, what limitation may be admitted upon the power of Congress in the government of this common territory held by Congress in trust for all the States equally? It belongs to the United States; Congress is a trustee to manage it for these equal partners.

§ 299. This question was adjudicated upon the fullest consideration in the great case of Dred Scott v. Sanford. Congress, by the Missouri Compromise Act, enacted that in no part of the territory of the United States acquired by the Louisiana treaty of 1803 should slavery be permitted north of the line of latitude 36° 30'; but that south of that line

¹ Green v. Biddle, 8 Wheat. 1; American Ins. Co. v. Canter, 1 Pet. 511; United States v. Gratiot, 14 id. 526; United States v. Rogers, 4 How. 567; Fleming v. Page, 9 id. 603; Cross v. Harrison, 16 id. 164; Dred Scott Case, 19 id. 393; Jackson v. Steamboat Magnolia, 20 id. 330; Beall v. New Mexico, 16 Wall. 535; Ferris v. Higley, 20 id. 375; National Bank v. County of Yankton, 101 U. S. 129; Mormon Church Case, 136 id. 1; Cope v. Cope, 137 id. 682; Report on Polygamy, H. of R. 2568, 49th Cong., 1st Sess.

These pages were written in the fall of 1895, and therefore before the burning question of territorial expansion, as involved in the acquisition of Cuba, Puerto Rico and the Philippine Islands by the United States, and the questions of citizenship, statehood, etc., inci-

dent thereto, had arisen. In addition to those cited by the author, the following authorities confirmatory of those cited may be consulted with interest: Murphy v. Ramsey, 114 U. S. 44; McAllister v. United States, 141 id. 174-188; Thompson v. Utah, 170 id. 346; In re Sah Quah, 31 Fed. Rep. 329; Jones v. United States, 137 U. S. 202; Loughborough v. Blake, 5 Wheat. 317; Reynolds v. United States, 98 U. S. 145; Callan v. Wilson, 127 id. 540; Ex parte Bollman, 4 Cranch, 75: Shively v. Bowlby, 152 U. S. 48; United States v. Wong Kim Ark, 169 id. 705; Boyd v. Thayer, 143 id. 135; Wong Wing v. United States, 163 id. 228; American Publishing Co. v. Fisher, 166 id. 464; Springville v. Thomas, id.

citizens from all the States, without limitation, should be allowed to colonize and settle. The court held that this French territory was not within the operation of the clause of the Constitution, because not then acquired, and that the peculiar form of the clause under consideration was adapted to the territory which had been acquired from Virginia and the other States; but that where territory was acquired by a treaty of the United States with a foreign power, the trust which devolved upon Congress in the regulation of that territory was measured by the fact that the territory was acquired by the common treasure and enterprise, and perhaps the blood, of the people of all the States; and that it was not competent for Congress to deny to any part of the Union, or to any State in the Union, the equal right of colonization upon such acquired territory. This was the opinion of the court, concurred in by Justices Wayne, Grier, Daniel, Campbell and Catron. Justice Nelson concurred in the judgment of the court, but on another ground. The decision went a step further, and held that Congress could not confer upon the Territories, and that the settlers in the Territories could not assume for themselves, the power to do what the court decided Congress had no power to do. It may be well to add that the power to dispose of territory has been considered, and perhaps fairly, broad enough to justify grants to any States for their public buildings, colleges and schools. These consist with the trust confided to Congress, because they sustain the communities in which all the States are interested, and for which Congress is trustee; but the words do not include the power of Congress to grant lands for personal or corporate benefit.

§ 300. What has already been said will leave little to be added under this head.

The first question is: Can a State not formed of territory originally within the limits of the Union be admitted? We have seen that the territory may be acquired and the State

be formed out of it; but can an independent State already formed be admitted into the Union? The answer is clear.

(a) The terms are unrestricted. What right have we to restrict them by interpretation?

(b) The Confederation provided for the admission of Canada and other colonies. Why presume less power under the more extended terms of the Constitution?

(c) We have seen that the first draft limited the States to be admitted to existing territory, but was advisedly changed.

(d) The case of Vermont is very interesting. It was a State free, sovereign and independent during the whole Revolution. Its territory was claimed by New York and New Hampshire, but it asserted its independence of any. The Constitution provides: "But no new State shall be formed or erected within the jurisdiction of any other State ... without the consent of the legislatures of the States concerned, as well as of the Congress." Had Vermont been held to be a part of New York, she could not have been admitted without the consent of New York. But it will be seen, by reference to the debate in the convention,¹ that the purpose was to admit Vermont on its own motion without the consent of New York, and as no part of that State. If it was no part of New York, then it was a free and independent State, and not included in the territory within the limits of any of the States. Vermont was therefore admitted into the Union as a free, sovereign and independent State, and not as formed out of any other State. As the framers of the Constitution provided for such action, it is obviously intended to allow new States not formed out of the territory within the limits of the United States to be admitted into the Union. Vermont, therefore, is a clear precedent for the admission of Texas, which had established its independence, and was admitted into the Union, though not formed out of the territory belonging to any State in the Union. These views led to the acquisition of the Louisiana territory and of the Mexican territory, and to the admission of Vermont and Texas as independent commonwealths.

Again the question arises: Is a new State so admitted different in its relations to the Union from the other States? Here also the answer is clear.

(a) The Ordinance of 1787 and the cession of Virginia provided that new States to be created should be the same in all respects as those previously existing, and the Constitution sanctioned and acted upon that ordinance.

(b) Each new State came into the Union as a co-pactor with the others and as a co-delegator of powers to the United States under the Constitution. The tenth amendment has as pertinent application to the last State, Utah, as to Virginia.

Another point to be noted is the inviolable integrity of a State as to its own territory. Its consent is absolutely necessary in order to its partition or the merger of itself with any other. New States are too apt to feel that they have been proteg�s of the government of the United States, and that they stand in a less independent relation to the Federal government than the older States. This is natural, but is a very erroneous view. They emerge from the wardship to which they have been subject, and enter the Union by which they become subject to the Constitution of the Union, just as the other States and their people. Such a feeling has been induced in many cases by the fact of the passage of an enabling act by Congress prior to the meeting of the convention of the new State, at which a Constitution is adopted and application for admission into the Union is made. But it is interesting to note as a fact that the States of Arkansas, Michigan, Minnesota, Oregon, Idaho and Wyoming were

¹ Before the war: Permoli v. New Orleans, 3 How. 589; Benner v. Porter, 9 id. 285; Atkinson v. Cummins, id. 479; McNulty v. Batty, 10 id. 72; Doe v. Beebe, 13 id. 25; Cross v. Harrison, 16 id. 164; Withers v. Buckley, 20 id. 84. After the war: Texas v. White, 7 Wall. 700; Webber v. Harbor Com'rs, 18 id. 57;

United States v. Fox, 94 U. S. 315; Pound v. Turck, 95 id. 459; Huse v. Glover, 119 id. 543; Cardwell v. American Bridge Co., 113 id. 205; St. Louis v. Myers, id. 566; Sands v. Manistee River Mfg. Co., 123 id. 288; Willamette Iron Bridge Co. v. Hatch, 125 id. 1.

admitted under an act of a convention of each of them without an enabling act by Congress.

The Territories have usually been governed by an act to establish and organize a government. This has been done in the case of many of them separately, and in the Compromise of 1850 and of the Kansas-Nebraska act of 1853-54, general provisions were made which affected the government of each of the Territories. The usual form of government included the three departments; the Governor, judges, and other leading officers being appointed by the President with the advice of the Senate, and the powers of legislation being vested in the suffragans of the territory prescribed by the organic act. As the infant State matured, developed and increased in population, the usual plan was to authorize its legislature to call a convention of the people of the territory, who should adopt a constitution as preliminary to admission into the Union. As Congress by the fourth section of the fourth article of the Constitution was required to guarantee to every State a republican form of government, and as the readiness to assume the position of a State in the Union on the part of the people of the territory usually makes it the duty of Congress to admit such State into the Union, only predicating that its Constitution shall be republican in form, the usual mode has been that when the young State has adopted its Constitution, its authorities should apply for admission into the Union, whereupon Congress, upon inspection and finding it to be republican in form, passes the necessary act for that purpose.

As already stated, this more formal method has not been uniformly adopted by the peoples of the Territories, but in many cases, having adopted a Constitution in a manner acceptable to themselves, they have been recognized as organized States, and admitted into the Union without difficulty.

§ 301. The question has arisen whether Congress can, upon any other ground than lack of a republican form of government, refuse admission to a State formed out of territory of the United States.

That it may do so practically is undoubted; but can it be justified in keeping a territory without representation and sub-

ject to the authority of the government, unless upon grounds which the Constitution makes an objection to its admission? We have seen that the decisions have been uniform that a State admitted into the Union stands in its relations to the government of the Union in no respect different from those which obtain between the old and original States. The authorities are conclusive upon this point.

But another phase of the question has arisen. Can Congress refuse admission to a State on a ground not in the Constitution, or admit a State upon conditions which will deny it powers, privileges or rights which by reservation are secured to the old States of the Union under the Constitution? Can Congress impose such a condition upon a new State as will abridge its powers if it enters the Union upon such condition? It would seem that such a proposition is utterly untenable. The States have confided to the Congress as their agent the admission of a State into the Union under the Constitution. Can this constitutional authority in Congress be construed to vest Congress as an agent with power to impose other conditions upon the new member which the Constitution had not prescribed; and if so, does the new State enter the Union shorn of its power pro tanto by the agent authorized to open its doors to the new commonwealth without any such condition? And is the State any the less a State than its sisters in consequence of Congress having divested it of those qualities enjoyed by the other members of the Union? This would make the Union one of unequal members � unequal in the essential qualities which constitute the States of the Union. Judge Story¹ discusses fully the historic Missouri restriction. Congress proposed that Missouri, as a condition of her admission to the Union, should prohibit slavery, and the learned author says the final result of the vote admitting the State "seems to establish the rightful authority of Congress to impose such a restriction." This opinion of Judge Story was afterwards reversed by the Supreme Court in Dred Scott v. Sanford, supra. Whether this restrictive clause was constitutional may be thus tested. It would be conceded by the

learned author that Congress at that time could not abolish slavery in Missouri. Could he maintain that after the State was admitted, with the restriction imposed, Congress could enforce its restriction by abolishing slavery in Missouri? If such an act by Congress would invade the reserved rights of the State of Missouri, as it would unquestionably have invaded that of Virginia, how could Congress have obtained the power to enforce that restriction by the abolition of slavery in Missouri as a granted power under the Constitution of the United States? The better opinion would clearly be that Congress could not impose as an obligation upon a State at the time of its admission into the Union such a restriction as it had no original power to exact or enforce. In the absence of such power, to use the power to admit or exclude as the means of enforcing an unconstitutional power would scarcely find an advocate.

Judge Cooley¹ has mentioned a number of instances of these conditions attached to acts for the admission of States. These were chiefly made since the civil war, and were efforts to condition the admission of the senators and representatives from the seceded States into the halls of Congress to which they were legally elected, upon the submission by those States to political conditions which did not apply to the Northern States. This took a step in advance of admitting a State to the Union upon conditions. For States already in the Union it imposed the condition of a new Constitution to them, and their submission to it, as the only ground upon which they would be admitted to representation in a government of which they wore an integral part. This was also done as to the State of Nebraska, just then admitted into the Union. Of course it is undeniable that each State enters the Union subject to the conditions which are involved in the provisions of the Federal Constitution, but to none other. Therefore Judge Cooley, with cautious moderation, expresses a doubt about the validity of all these Congressional efforts at putting the States of the Union into a Union upon a different Constitution.

§ 302. A clause is found in the section under consideration in these words: "And nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." This clause has ceased to be of any consequence, as the claims referred to have been long since settled. It had reference to certain vacant lands claimed by the United States as ceded to them by the treaty of peace with Great Britain.¹ Mr. Madison briefly refers to this in the Federalist.² Whatever the claims were, they appear to have been adjusted, and have left nothing for the clause to operate upon.

§ 303. It will be proper in considering this clause³ to preface its discussion by a consideration of the English law of treason. In the early history of England the crime of treason was very indefinite in its limitations. "If the crime of treason be indeterminate," says Montesquieu, "this alone is sufficient to make any government degenerate into arbitrary power."⁴ In early times great latitude was left to the judges to determine what was treason or what not, whereby these tools of tyrannical princes had opportunity to create an abundance of constructive treasons. To prevent the evils of these constructive treasons, the act of 24 Edward III., chapter 2, was passed defining the crime of treason. That statute provided that "When a man doth compass or imagine the death of our Lord the King," etc., which was the first branch of the definition; the second related to assaults upon the chastity of the king's wife, or the king's eldest unmarried daughter, or the wife of the king's eldest son and heir. These we need not notice, as they have no analogy to our system. The third species of treason was, "If a man do levy war against our lord the King, in his realm." And the fourth was, "If a man by adhering to the King's enemies in his realm, giving them aid and comfort in the realm or elsewhere."⁵

This statute placed a great check on the courts in the abuses which had arisen in trials for treason. In the trial of Algernon Sydney, the illustrious prisoner was convicted upon the evidence of papers found in his closet, which were really merely expressions of speculative opinions. Blackstone, Stephen concurring, says the king "here intended is the king in person, without any respect to his title." For it is held that a king de facto and not de jure, or, in other words, a usurper that had got possession of the throne, was king within the meaning of the statute, as there was a temporary allegiance due to him for his administration of the government and the security and protection of property. Treasons committed against Henry VI. were punished under Edward IV., though the line of Lancaster had been declared usurpers by act of Parliament; and the most rightful heir of the crown, who had never had plenary possession of the throne, was not a king, within the statute, against whom treason could be committed.

The statute of 1 Henry VIII., chapter 1, which was declaratory of the common law, pronounced all subjects excused from any penalty or forfeiture who had obeyed a king de facto. This was the opinion of Hawkins, but the true distinction, according to Blackstone, seems to be that the statute of Henry did not commend but excused the obedience paid to the king de facto in opposition to the king de jure; and this for the reason stated, that the subject is an imperfect judge of the title, and can only decide upon the de facto possession of power and not upon the de jure title,¹ which was the English law at the time the Federal Convention sat.

In Pinckney's plan² a provision was inserted on the subject of treason, which, upon reference to the Committee of Detail, was reported by that committee in this form: Treason against the United States "shall consist only in levying war against the United States, or any of them, or in adhering to their enemies." This definition of treason was the subject of earnest debate on the 20th of August.³ This

clause was first changed by striking out the words, "or any of them," after the words "United States." This was agreed to nem. con. This defined treason as a crime against the United States, leaving to the States the definition of the crime against themselves respectively. Upon the idea that the Constitution had only to provide for treason against the United States, the words "against the United States" were reinstated after the word "treason." The word "or" was substituted for "and" before "adhering to the enemies," and the words "giving aid and comfort" after the word "adhering," because found in the act of Edward III.

Except in immaterial particulars the clause as finally adopted followed, as Mr. Mason said, the statute of Edward III. The purpose of the act of 24 Edward III., we have seen, was to put a check upon constructive treasons by an exact definition of the crime, and that this was the purpose of the Constitution appears from the debate already referred to, and from the language of Mr. Madison in No. 43 of the Federalist, quoted with emphatic approval by Judge Story.¹The language of the Federalist thus sanctioned was that "New-fangled and artificial treasons have been the great engines by which violent factions ... have usually wreaked their alternate malignity on each other." And the "Convention," says Judge Story,² "deemed it necessary to interpose an impassable barrier against arbitrary constructions, either by the courts or by Congress, upon the crime of treason.... In so doing they have adopted the very words of the statute of treason of Edward III.; and thus by implication, in order to cut off at once all chances of arbitrary constructions, they have recognized the well-settled interpretation of these phrases in the interpretation of criminal law which has prevailed for ages."³

(a) It defines only treason against the United States. Treason against a State is left to its own definition; and

³ In accord: Blackstone's Commentaries, 81-84; Cooley on the Constitution, 287-88.

lest any should doubt whether this was intended, a reference to the subsequent clauses will remove it. Article IV, section 2, clause 2, provides: "A person charged in any State with treason, felony or other crime, who shall flee from justice, and be found in another State," shall be surrendered as a fugitive from justice and "be removed to the State having jurisdiction of the crime." This clearly refers to a treason against a State, of which it alone could have jurisdiction.

(b) The treason referred to is against the United States, as "united under this Constitution."

(c) It consists of either of two offenses: levying war against them, or adhering to their enemies, giving them aid and comfort. Either of these could constitute the offense. It is levying war. A mere conspiracy by force to subvert the established government is not treason, but there must be an actual levying of war. The only cases calling for the interpretation of this clause which have come before the Supreme Court have been Ex parte Bollman¹ and United States v. Burr.² In the first case the Chief Justice said, to constitute this crime, "War must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the act of levying war cannot have been committed." Again he says: "It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war."

Both branches of this part of the definition were in the act of Edward III., and both were inserted in the Constitution, in order to make the crime more definite, mere adherence not being enough, unless the adherence gave aid and comfort to the enemy. Such aid and comfort are given when the accused furnishes supplies to the enemy, gives them information, and the like.¹ "By enemies are to be understood the subjects of foreign powers with whom we are at open war, and does not apply to rebels; for a rebel is not an enemy within the meaning of this statute."² In United States v. Prior³ it was held that coming peaceably from an enemy's ship to procure provisions for him was not treason.

(d) 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." This provision was drafted from British jurisprudence. Confessions of the accused may be ground for a conviction, but these must be strictly guarded. If taken by private persons and reported by them, it is a most suspicious form of testimony, because liable to be obtained by artful promises or menaces, and to be reported without accuracy, and incapable of being discovered or corrected by negative evidence.⁴ Therefore a confession to convict a man must be in open court, where, with no extraneous influences of fear or hope, he may confess with no possibility of misrepresentation.⁵ If the accused does not make confession in open court, then he can only be convicted on the testimony of two witnesses, not to distinct and independent circumstances which in their concurrence might prove guilt, but two witnesses, each of whom shall support the other as to the same overt or open act of treason, and

² 1 Stephen's Blackstone. 242; Foster, 210, 219; Hawk. P. C., Book 1, ch. 17. see. 28. Accord: Mr. Dana for the United States, Chase's Decis-

these witnesses must be credible.¹ The discussion of these parts of the clause by Chief Justice Marshall is worthy of diligent study.

§ 305. The second clause of this section provides for the power of Congress in respect to the offense. The definition of the crime is constitutional. Congress cannot touch or change it. The mode of conviction is fixed by the Constitution; over this Congress has no power. The Constitution intended to place these points beyond the reach of legislative power. The mode of indictment is fixed by the fifth article of the amendment, and is beyond the reach of the power of Congress. The mode of trial, the place, and the rights of the prisoner on trial, in respect to information as to the accusation, to be confronted with the witnesses against him, to compulsory process for his own witnesses, and to the assistance of counsel, are fixed beyond legislative control by article VI of the amendments, and by article III, section 2, clause 3, of the Constitution.

What, then, can Congress do in respect to this crime of treason? That is provided for by the succeeding clause. "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 attainted."

This gives to Congress only the power to declare the punishment for treason. But in this it is precisely and strictly limited, so that no conviction of treason shall work corruption of blood � that is, obstruct inheritance; "or of forfeiture" �

that is, of an estate except during the life of the person attainted. Thus a person may be punished for treason, but the consequence of it shall not affect the inheritable quality of his blood, or forfeit his property except during his life. This, as we shall see, is a radical change from the English law. This last provision limits forfeiture to the life of the person attainted, and was adopted in England by the statute of 3 and 4 Edward IV., chapter 106. This view of this important clause has very striking reference to what has been said ¹ Ex parte Bollman; United States v. Burr, supra.

supra as to the proceeding for confiscation of the property of southern citizens jure belli, and under the act of July 17; 1862, in connection with the joint resolution suggested by President Lincoln limiting the judgment of forfeiture in such ex parte proceedings to the life of the offender. It is not improper to suggest that in respect to that important branch of this clause of the Constitution there was no provision which protected against the forfeiture which by the Constitution could result only from conviction, but a provision which would have prevented conviction until there was an indictment, trial by jury and conviction upon the testimony, as provided in this clause.

In the case of the act for seizing the captured and abandoned property of southern citizens, the allegation of disloyalty, without proof or trial, or conviction, was directly contrary to the spirit and letter of this clause of the Constitution. How the property could be forfeited in toto, without any of these, is a question difficult of solution, in view of the monitory language of the Federalist and of the eminent Judge Story, holding that this clause was intended to obstruct the invention of constructive treasons by the courts or by Congress.

Cases already referred to are pertinent at this point as to the effect of the forfeiture of the estate of an offender for his life only, and as to the effect of such forfeiture upon the remainder in fee, which this clause clearly shows to be exempt from forfeiture, and should pass to the heirs. In a number of cases this question was discussed by the Supreme Court.¹ In a late case, Railroad Co. v. Bosworth,² the question was discussed with great acuteness by Mr. Justice Bradley, delivering the unanimous opinion of the court. He said, speaking of the act of July 17, 1862,³ and the joint resolution passed contemporaneously, limiting the confiscation to the life estate of the offender: "It would seem to follow as a

¹ Bigelow v. Forrest, 9 Wall. 339, Day v. Micou, 18 id. 156; Wallach v. Van Riswick, 92 U. S. 202; Pike v. Wassall, 94 id. 711; French v.

logical consequence from the decision in Avegno v. Schmidt (113 U. S. 293), and Shields v. Schiff (supra), that after the confiscation of the property the naked fee (or the naked ownership, as denominated in the civil law), subject, for the life-time of the offender, to the interest or usufruct of the purchaser at the confiscation sale, remained in the offender himself; otherwise how could his heirs take it from him by inheritance? But by reason of his disability to dispose of or touch it, or affect it in any manner whatsoever, it remained as before stated, a mere dead estate, or in a condition of suspended animation. We think that this is, on the whole, the most reasonable view.

"There is no corruption of blood; the offender can transmit by descent; his heirs take from him by descent. Why, then, is it not most rational to conclude that the dormant and suspended fee has continued in him?

"Now, if the disabilities which prevented such person from exercising any power over this suspended fee, or naked property, be removed by a pardon or amnesty � so removed as to restore him to all his rights, privileges and immunities, as if he had never offended, except as to those things which have become vested in other persons, � why does it not restore him to the control of his property so far as the same has never been forfeited, or has never become vested in another person? In our judgment it does restore him to such control."

The subsequent cases of Jenkins v. Collard¹ and United States v. Dunnington² sanction the decision in Bosworth's Case. The result, therefore, is this: On a conviction of treason and on a confiscation proceeding under the above act the result is the same; that is, 1st, the forfeiture of the life estate of the offender, and its absolute alienation from his control by a sale under the procedure; 2d, the estate in remainder remains in him, but is in a condition of suspended animation, in which he is absolutely disabled from all power of alienation thereof, but with the estate in him in such condition as to descend from him to his heirs at law; and this because the

Constitution provides there shall be no corruption of blood; 3d, that upon his death the estate in remainder passes from him by descent to his heirs at law; 4th, but as the estate is in him with no power of alienation while living by reason of his attainder of treason, a pardon during his life re-vests him with the jus disponendi attached to his title in remainder, and therefore, if after pardon he disposes of the fee, such disposition binds his heirs, and even if before pardon he disposes of it with covenants of seisin and warranty against all persons whatsoever, such alienation will bind his heirs.¹

§ 306. Among the prime objects of the more perfect union among the States was to establish such relations between the citizens of the several States as would bring them into closer contact as regards business, commerce, intercourse and the like; the Constitution reserving to each State the local authority to manage its own internal polity according to its exclusive will. We have seen how much was sought to be accomplished by the powers given to Congress as to a common revenue, regulation of commerce with foreign nations and interstate, a common postal system, and army and navy for the common defense, uniform regulations for naturalization, coinage laws, and the like. The framers looked further to such regulations and relations between the citizens of the different States, and such relations of compact between the States as to the business of the people, as would make them one instead of many as to these important subjects.

The first of these to which attention will be called² was in reference to the use that in each State it might be desired to make of the public acts, records and judicial proceedings of the several States, how these should be proved, and what should be the effect of them when proved in the States other than that in which they originated. The States agreed to

¹ See also United States v. Klein, 13 Wall. 128; Jenkins v. Collard, 145 U. S. 546, supra.

In the fourth article of the Confederation it was provided that "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State." It is obvious that this rested solely on compact, without any provision for making it effectual, independent of the will of each State. Accordingly in the convention Mr. Pinckney proposed an article very similar to the clause just referred to.¹ In the report of the Committee of Detail it was substantially reported in the same form.² Subsequently in the convention it was proposed to provide for the execution of judgments of one State in another under regulations by Congress. Objection was made to this, and the matter was referred.³

The committee reported a clause,⁴ which was enlarged so as to allow the Legislature, by general laws, to "prescribe the manner in which such acts, records and proceedings shall be proved, and the effect which judgments obtained in one State shall have in another;" and then the clause was adopted substantially as it now appears. This removed the embarrassment which exists between different countries as to the effect of such public acts and judgments, giving no force except a prima facie one at most to any judgment of a foreign country when sued on here; leaving the defendant the right of every defense he had to the original cause of action, and is a pledge of each State that the judicial proceedings and other public acts of a sister State should be conclusive of any proceedings thereon in the State where it was instituted. The clause as finally adopted was in these words: "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."

effect thereof" meant the effect of the acts, records and proceedings, and not the effect of the proof, and the decisions of the courts to this effect have been uniform.

The full faith and credit provided for means the same to which they are entitled in the State whose they are. When, therefore, suit is brought in one State upon a judgment entered by the court of another State, and it appears that the

law of the State in which it was entered made it conclusive on the defendant, it will be held equally conclusive in the court where suit is brought upon it. No plea will be good against such judgment which would not be good in the court where it was pronounced: but in the State where the suit is brought upon the judgment, as in the State where the judgment is pronounced, it may be shown that the court of the latter had no jurisdiction to enter it. So a release may be pleaded, and the statute of limitations will be available according to the law of the forum where the suit upon it is brought. But the latter State must allow reasonable opportunity to enforce the demand, and not by its act of limitation substantially deny all remedy. The cases on this subject are numerous.¹

But while constructive service of process by publication will suffice to subject property within the jurisdiction of the

court, such service cannot be the foundation of a personal judgment. A personal judgment can only arise from process against the defendant served in the State where the judgment is pronounced; and, a fortiori, is not binding in any other State. The latter gives full faith and credit to such judgment in the former by denying it the effect of a personal judgment which it cannot have in the former. Later cases are in accord with those already cited.²

¹ Mills v. Duryee, 7 Cr. 481: Nations v. Johnson, 24 How. 195: Hampton v. McConnel. 3 Wheat. 234: Green v. Van Buskirk. 7 Wall. 139: Harris v. Hardeman, 14 How. 334: Cheever v. Wilson, 9 Wall. 108;

Galpin v. Page. 18 id. 350: Thompson v. Whitman, id. 457; Christmas v. Russell. 5 id. 290.

² Renaud v. Abbott, 116 U. S. 277; Chicago, etc. Ry. Co. v. Wiggins Ferry Co.. 119 id. 615; Blount v.

The court may inquire into the jurisdiction of the court rendering the original judgment, and into the facts necessary to give such jurisdiction. Congress has passed a law carrying out the provisions of this clause, and it has been decided that the States may make other regulations not in conflict with these, and allow proof of records in common-law modes.¹

§ 307. "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."²This important clause has already been largely considered. It has been seen that the provisions of the thirty-third Article of the Confederation have been embraced in the condensed terms of this article. Construing it in the light of the authoritative exposition of Mr. Madison in the Federalist, supra, sanctioned by the decision of the Supreme Court in the Slaughter-House Cases, this clause may be regarded as a mutual guaranty by the States of intercommunication of privileges and immunities of citizenship in each of them, and is a constitutional guaranty independent of any power of Congress to pass laws to execute or regulate it. The prior section just considered is based upon interstate compact, with a power in Congress to pass laws to aid in giving it effect; but this is stripped of all power, Federal or State, to impair the right given thereby. A brief analysis of the clause will now be attempted.

In Corfield v. Coryell³ Justice Washington gives an exposition of this clause, which has been adopted as sound in a number of cases to be referred to, and especially in the Slaughter-House Cases, supra. He says the privileges and immunities of citizens may be comprehended under the following general heads: "Protection by the government; the

Walker, 134 id. 607; Texas Pacific Ry. Co. v. Southern Pacific Ry. Co., 137 id. 48; Carpenter v. Strange, 141 id. 87; Laing v. Rigney, 160 id. 531.

¹ Gaines v. Relf, 12 How. 472: White v. Burnley, 20 id. 235. ² Const. U. S., Art. IV, sec. 2.

enjoyment of life and 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 the purposes of trade, agriculture, professional pursuits or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of every kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental."

"According to the express words and clear meaning of the clause, no privileges are secured by it but those which pertain to citizenship."¹

"These are civil rights, not political franchises. Hence, voting, holding office, serving on juries, and the like, are political, not civil, privileges."²

A corporation of one State is not a citizen of another within the meaning of this clause. A State may deny to the corporation the privileges accorded to a like corporation of its own.³ No lawyer admitted to practice in one State has the right under this clause to practice in every other. That is not a privilege of citizenship, but belongs to the internal polity of a State.⁴ Louisiana gave certain rights of property by virtue of marriage to its own resident citizens. This did not entitle the citizen of Mississippi to the same privileges.⁵

¹ Conner v. Elliott, 18 How. 591; Blake et al. v. McClung et al., 172 U. S. 239.

⁴ Ward v. Maryland, 12 Wall. 418; Chemung Canal Bank v. Lowery, 93 U. S. 72; Hooper v. California, 155 U. S. 648.

fish in its own waters, and exclude citizens of other States. Its fisheries are its own property; it may give them to its own children and exclude others.¹ We have seen that taxation of a citizen of another State at a higher rate than its own citizen is a violation of this clause.²

§ 308. Two other clauses in this connection may be considered. It is well known as a principle of international law that extradition for crime is dependent on contractual obligation. It is not de jure, but contractual, or a matter of comity. This was more distinctly so a century ago than now, and was more so then than now as to the extradition of persons held to service or labor, their extradition being merely a matter of comity.

In the fourth Article of Confederation the extradition of criminals was provided for, and the provision of the present Constitution is in almost the same terms; but no provision for the extradition of slaves was incorporated in the Articles of Confederation. The language of the provision was as follows : "If any person guilty of, or charged with treason, felony, or other high misdemeanor in any State, shall flee from Justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense."

"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."³

We may note that the person to be surrendered must be charged in the demandant State with treason, felony or other crime, and must flee from justice and be found in another State. In such case the interstate compact declares he shall,

on the demand of the executive of the demandant State, be delivered up by the asylum State to be removed to the demandant State, having jurisdiction of the crime.

In the case of Kentucky v. Dennison,¹ the Governor of Ohio refused to surrender a fugitive from Kentucky who was charged in Kentucky with kidnaping a slave. The point was made by the Governor of Ohio that that was not a crime according to the law of Ohio. The same point was made by Governor Seward in 1841, and the extradition of the kidnaper of a slave was distinctly denied. The Supreme Court in the Kentucky and Ohio case held it to be a case over which the court had no jurisdiction, and with which Congress had nothing to do. It depended upon interstate faith, and the claim of Kentucky was dismissed by that court, as the claim of Virginia had been denied by Governor Seward.² The act of 1793 was held to be only declaratory, and that the United States had no power to compel the extradition. Congress has passed a later law on the subject.³ It has been held that the charge against the accused must be in such judicial form as would justify an arrest were it committed in the demandant State.⁴

When the demand is made in due form, it is the duty of the executive of the asylum State to surrender the accused, and he has no moral right to refuse.⁵ If he does refuse, the Federal courts have no power to compel obedience.⁶ The person surrendered should be held privileged from prosecution on any new charge, until he has had opportunity to return to the State which has surrendered him. It was so decided in Commonwealth v. Hawes,⁷ with which United States v. Rauscher⁸ is in accord. But the Supreme Court, in Lascelles v. Georgia,⁹ held that the accused was entitled to no

² See also Holmes v. Jennison, 14 Pet, 540; Taylor v. Taintor. 16 Wall. 366: Ex parte Reggel, 114 U. S. 642; Roberts v. Reilley, 116 id. 80.

such exemption; that the terms of the Constitution did not confine the jurisdiction of the demandant State over the fugitive to trial for the specific crime for which he was surrendered. But if the asylum State has an unsatisfied demand upon the fugitive, it has a right to satisfy the demand of its own law before surrendering him.¹

In the case of Pierce v. Fries,² Pierce, on a requisition of the Governor of Alabama, was arrested in Texas, and sought discharge upon the writ of habeas corpus, on the ground of the invalidity of the indictment under the laws of Alabama. The Supreme Court affirmed the decision of the court of Texas, that, the other prerequisites for extradition having been complied with, he should be extradited, leaving to the courts of Alabama to decide upon the sufficiency of the indictment. This not only conformed to the clause of the Constitution in reference to extradition, but gave full faith and credit to the action of the courts of Alabama according to the previous clause already considered.

§ 309. The next clause³ concerns the surrender of fugitives held to service or labor in one State and escaping into another. This was inserted in the Constitution, no similar clause having been in the Articles of Confederation, as a part of that general compromise to which reference has been made ante, involving the commerce power and the ratio of representation in the two Houses, the slave trade, and the exemption of exports from taxation or duty. The terms descriptive of the character of the fugitives are broad enough to include the main class of fugitive slaves as well as persons bound as apprentices, etc., under the laws of a State. It will be perceived that the extradition of fugitives from justice is on demand of the executive authority of the demanding State. The claim for the surrender of the fugitive from service or labor is made by the party to whom it may be due. The clause does not state on whom the demand or claim shall be made. In this demand of executive upon executive the Supreme Court has held, as we have seen, that

the judicial power is not competent to coerce the asylum State to comply with the demand of the demandant State; but in the case of the fugitive from service it is a private claim of the owner for the delivery of his property, who is also a person who may assert his freedom in consequence of any law or regulation of the asylum State. It is obvious, therefore, that this claim and the resistance thereto would generate a suit of some kind before some judicial tribunal. This being so, and the case arising under the Constitution of the United States, would give to the judicial power of the United States jurisdiction of such case, to be regulated by necessary and proper laws to be passed by Congress for making the proceeding effectual.¹ With this view of the Constitution, Congress in 1793 passed the fugitive slave law, which was in operation until it was superseded by the fugitive slave act of 1850.

Both of these acts prescribed the judicial procedure for trying the title of the claimant to the fugitive in a United States forum. The validity of both of these acts was stoutly contested. That of 1793 was considered in the case of Prigg v. Pennsylvania.² The decision of the court was delivered by Mr. Justice Story. The case was briefly this: Prigg, as the agent of a Maryland owner of a fugitive slave, caused the slave to be arrested, to be removed to the State of Maryland and delivered into the custody of her master. A special verdict found the facts. The court adjudged the accused guilty of the offense; he appealed to the Supreme Court of Pennsylvania, where the judgment was pro forma affirmed. From this latter judgment writ of error was brought to the Supreme Court of the United States. The Supreme Court reversed the judgment as unconstitutional and void. Judge Story held that the Constitution vested in the United States government exclusive power to legislate concerning the extradition of fugitive slaves; that the owner of a fugitive slave was clothed with complete power in every State to seize and recapture him whenever he could do so

without a breach of the peace. The statute of Pennsylvania of March, 1826, made it a crime to take or carry away any negro with the intent of selling or keeping him as a slave, and punished such act by fine and imprisonment. The decision of the unconstitutionality of the Pennsylvania law was the question involved. The exclusiveness of the power in Congress in respect to the extradition of such fugitives was not involved, and therefore was dictum. Chief Justice Taney, and Justices Thompson, Baldwin and Daniel, concurred with the opinion of Story on the unconstitutionality of the law under which conviction was had, but dissented from the opinion expressed that the power of the Federal government was exclusive. Justice McLean concurred with the judgment of the court, and agreed with Justice Story that the power was exclusive in the Federal government to act in respect to such cases; but held that there was a police power in the State to guard and protect its own jurisdiction and the peace of its citizens. The court was unanimous in declaring the act of 1793 constitutional, and the act of Pennsylvania punishing the claimant of the fugitive slave unconstitutional and void.

In the case of Ableman v. Booth¹ the question arose thus: Booth was charged with aiding and abetting in Wisconsin the escape of a fugitive slave from the United States marshal who had him in custody under warrant issued by a district judge of the United States under the act of Congress of September, 1850. A collateral question was involved, which, upon the clause we are now considering, it is not necessary to advert to. The court decided that the fugitive slave law of 1850 was, in its provisions, fully authorized by the Constitution of the United States; that the conviction of Booth under one of its provisions for aiding the escape of a fugitive slave was legal and constitutional; and that the judgment of the Supreme Court of Wisconsin discharging Booth from the imprisonment inflicted by the United States court was utterly void and should be reversed. The

court was unanimous in its decision, including Justices McLean, Nelson, Grier and Clifford, who were citizens of Northern States.

The conclusion, however, is not justified that all legislation by the States in aid of the owner of a fugitive slave or punishing the obstruction of a right was unconstitutional. In Moore v. Illinois,¹ Moore was indicted under the code of Illinois for harboring a negro slave and preventing the lawful owner from retaking him, etc.; and the court, with one dissentient, affirmed the constitutionality of the Illinois law, and as dicta intimated that any legislation of the State to aid and assist the claimant would be valid. It may be added that it is probable from the language of Judge Story in Prigg v. Pennsylvania that the power of Congress to pass laws in aid of the extradition of fugitives from justice would be sustained upon like grounds as the laws of 1793 and 1850 were held to be constitutional in respect to fugitive slaves.²

§ 310. This is an important provision which carries into effect the purposes expressed in the original Articles of Confederation, and the objects mentioned in the preamble to the Constitution in these words: "To insure domestic tranquillity, provide for the common defense, ... and secure the blessings of liberty to ourselves and our posterity." The language of the present clause is as follows: "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."³

The first provision is the guarantee of a republican form of government by the United States to each State. Everywhere in the Federalist, and notably in the twenty-first, quoting from Montesquieu, as well as in the forty-third, number,

the idea is prominently enforced that a union of States, in which the form of government of each is dissimilar from that of each of the others, resulting in a union of dissimilar democracies, would be in its very nature so uncongenial as to present no hope of permanency or harmony in its relations. The whole structure of the Federal system is based on the idea of the popular form of government of each of the members of the Union. The popular suffrage, which is the constituency of the House of Representatives, is derived from it as the constituency of its own legislature. It is very natural then for Mr. Madison to say: "In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other: and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained."¹

He thus argues that the Union is a compact between distinct republics, and that the basis of that Union is the identity of type of each of these republics, and a guarantee; assured that this type shall be permanent. And he adds: "Governments of dissimilar principles and forms have been found less adapted to a Federal coalition of any sort than those of a kindred nature." And Montesquieu says:² "A confederacy is not agreeable to the nature of petty monarchies.... The spirit of monarchy is war and enlargement of dominion; the spirit of republics is peace and moderation. These two kinds of government cannot naturally consist in a confederated republic."³

This idea was originally proposed in Randolph's plan.⁴ At last Mr. Wilson suggested the form that a "republican form of government shall be guaranteed to each State."⁵ At one time there was a suggestion that each State should have a re-

publican Constitution. The form adopted was the guarantee of a republican form of government. This left great variety in the Constitution as to suffrage and the like to be protected under a republican form of government. Thus many States had very restricted suffrage, as the freehold suffrage in Virginia. Some of them had universal suffrage. All the slave States excluded slaves from suffrage, and most of them free negroes. Other States, having no slaves, admitted what was substantially universal suffrage. Still the form was popular; though substantially there was great variety. Mr. Madison discusses this clause with condensed force in the Federalist,¹as follows:

"It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers, To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be of course bound to pursue the authority. But the authority extends no farther than to a guaranty of a republican form of government, which supposes a pre-existing government of the form which is to be guarantied. As long, therefore, as the existing republican forms are continued by the States, they are guarantied by the Federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the Federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance."

§ 311. We start with the assumption, then, that all the forms of government then obtaining in the several States of the Union were republican. The above citation from Mr. Madison shows this. But the fact is patent. Would the States have adopted a Constitution which invited a disturbance of their forms of government upon the instant that the Constitution went into effect? The existence of slavery, where one-third or one-half of the population were slaves, was not inconsistent with a republican form of government. Men might say it was inconsistent with the substantial idea of a republic, but still by the internal polity of each State it was republican in form, only those being excluded from the suffrage whom the State deemed unworthy. Nor is a very restricted suffrage inconsistent with a republican form of government. Every form of suffrage involves the idea that only those are excluded who are unfit for it, and a republican form of government does not require the admission of unfit persons to suffrage, in order to its being republican. Hence slaves without votes were admitted as a basis of representation, three-fifths being counted, and this by the Constitution of the United States. That Constitution which recognized all this in the State Constitutions could not deem the status of slavery and the disfranchisement of slaves inconsistent with a republican form of government.

The clause reads: "The United States shall guarantee." What authority then must be the guarantor? By article I, section 8, clause 18, Congress has 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 Constitution in the government of the United States," etc. The law, therefore, necessary and proper to guarantee a republican form of government must be passed by Congress to carry into execution this duty reposed in the United States. The words "to guarantee to every State in this Union a republican form of government," obviously discriminate the State as a Body-politic from its government, whose form must be republican. A delicate question here arises. If Congress must

guarantee, must it not determine when the occasion arises for its exercise? The word "guarantee" does not mean to form, to establish, to create; it means to warrant, to secure, to protect the State, that is, the Body-politic, in its right to have a republican form of government. It defends the people against the interference of any foreign power, or of any intestine conspiracy against its right as a Body-politic to establish for itself republican forms of government. To allow the guarantor to take the initiative, and, under the pretext of its duty as guarantor, to impose a form of government upon the people of a State, would make this clause, intended for protection, an excuse for destructive invasion. No occasion for the exorcise of this important yet dangerous power has ever arisen, except as the result of civil war. It was assumed as a postulate in Texas v. White^l that this guaranty clause, by the act of secession of the State of Texas, was not applicable, as that State had lost its government and could not be recognized by the court as capable of instituting a suit in the name of the State. It was necessary that the government and the people of the State should be restored to peaceful relations to the United States under the Constitution before such a suit could be prosecuted. The authority to provide for the restoration of the State government was derived from this guarantee clause in the Constitution. When slavery was abolished the new freedmen became part of the people, and it was the State thus constituted which was now entitled to the benefit of the constitutional guar-

antee. Congress had the choice of means for re-establishing a republican form of government, but these means must be sanctioned by the Constitution.

In accord with this reasoning the reconstruction acts were passed, by which it was declared that no legal State governments existed in the seceded States; and that in order to preserve peace and good order in the States until legal State governments republican in form could be established, they were to be divided into military districts, each of which

was assigned to an officer of the army, with a military force to enable him to perform his duties and enforce authority. The officer was authorized to protect persons in their rights, to punish criminals, either through the local civil tribunals or through military commissions which the act authorized. These acts provided that when the people of any of these States had framed a Constitution in conformity with that of the United States, and framed it in a way specified by the statute, and when the State had adopted a certain article of amendment to the Constitution, which article was to become a part of the Constitution, then the State should be

admitted to representation in Congress. The court in that case did not pass upon the constitutionality of any provision of the reconstruction laws. The case was decided with three judges dissenting; nor have these laws ever been sanctioned by judicial decision. It is therefore pertinent to observe in respect to them, that they overthrew existing republican forms of government in every State of the Confederacy, and that government in Virginia which Congress and the President had recognized in the act dividing the State of Virginia which had resulted in the admission of West Virginia to the Union; and the government of Virginia thus recognized was put in possession of power at the city of Richmond after the war as the lawful government of Virginia. The reconstruction laws overthrew that government which Congress itself had set up, and substituted a military government with the judicial power subject to its control. Military commissions were inaugurated for the trial of citizens in other States,¹ and conventions were called under regulations prescribed for suffrage by Congress, and new Constitutions were adopted and new forms of government established. It is hardly a question that these laws, which overthrew the form of government established by the State, and refused to restore it as the legitimate form of government, and set up a military despotism in its place, were not a guarantee of a republican form of government to the States, but guaranteed the over-¹ McCardle's Case, 6 Wall. 318, and 7 id. 506.

throw of all republican forms of government and the adoption of a Constitution against the will of its people and under the dictation of military power.

§ 312. The next clause reads, "The United States ... shall protect each of them against invasion." This is a carrying out of the offensive and defensive alliance between the States, and requires the United States, through the action of Congress and by force of their armies and navy, to protect each State against invasion. This is the common defense. It makes it improper for the United States, by treaty or otherwise, without the consent of the State, to cede any part of its domain; for how can it be protected when the invasion or permanent possession of any part of the State is permitted by the guarantor?

§ 313. The clause then provides¹ that the United States, on application of the legislature or of the executive (when the legislature cannot be convened), shall protect each of them against domestic violence. In the case of domestic violence, it is obvious that the United States cannot interfere unless called upon to do so by the legislature, or by the State executive when the legislature cannot be convened. The United States, then, are not to determine what is domestic violence calling for their protection, but that is to be determined by the legislature or executive of the State. It is interesting to note the observations of Mr. Madison on this point. He says:² "At first view, it might seem not to square with the republican theory to suppose either that a majority have not the right or that a minority will have the force to subvert a government; and, consequently, that the Federal interposition can never be required but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations for the purpose of violence be formed as well by a majority of a State, especially a small State, as by a majority of a county or a district of the same State; and if the authority of the State ought in the latter case to

protect the local magistracy, ought not. the Federal authority in the former to support the State authority? ... Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? ... May it not happen, in fine, that the minority of citizens may become a majority of persons by the accession of alien residents, of a casual concourse of adventurers, or of those whom the Constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men, but who, in the tempestuous scenes of civil violence, may emerge into the human character and give a superiority of strength to any party with which they may associate themselves."

These views show that the United States are bound, on the application of the legislature or executive of a State, to aid in suppressing an insurrection in a State, even though it may have a majority, including alien residents not suffragans, on the side of the opposition to the government. The United States cannot join with the parties to domestic violence, because they are in the majority, to overthrow the government which is guaranteed as a republican government, and to be protected against domestic violence. This would make the United States a factor in domestic quarrels, and not a protector of the government against those who are too strong to be overborne by it. Where there are rival governments and the demand is made by either or both, it has been decided in the case of Luther v. Borden,¹ followed

This latter part of this clause was insisted on by the Southern States, because assuring them of the protection of the United States government in case of servile insurrection.²

§ 314. In the form in which power was delegated to the Congress in the Constitution, there was an implied limitation upon the powers in the fact that all were delegated; and that all not delegated, or prohibited to the States, were reserved to the States respectively, or to the people. But the framers of the Constitution were not content with this. They were wise enough to foresee that power, when left in any degree to implication, would seek to increase itself by inference so as to endanger public liberty.

They proposed, therefore, upon certain essential matters, to provide against this stretch of power through implication, by forbidding the exercise of certain dangerous powers in express terms. A number of these are to be found in article I, section 9; and others were afterwards added in the first ten amendments to the Constitution. There had been a great popular demand for a bill of rights, and after the Constitution was submitted to the judgment of the people of the several States, the cry of patriots throughout the Union was, that a radical defect in the system was in the absence of a declaration of rights, which should be beyond the reach of Federal power. How far this demand was met in the original Constitution we will now proceed to consider.

§ 315. The first clause of the ninth section we need consider no further, as we have already fully considered it under the power as to commerce.

32. See also Attorney-General Cushing's Opinion. March 3, 1857, in Yazoo City (postoffice) case.

The second clause is in these words: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion the public safety may require it." Let us analyze this clause. There is no other mention of the writ of habeas corpus in the Constitution. The underlying principle of this writ, which subjected all arrest or seizure of the person of a free man to judicial arbitrament, was found in the thirty-ninth chapter of Magna Carta; but that which we refer to ordinarily as the Habeas Corpus Act was the 31st of Charles II., chapter 2.¹ The principles of this great act of Charles II. were brought to America by the several colonies, and acts of habeas corpus based upon that primeval act, which was itself but a re-enactment of acts more ancient than it, were passed by the several States, for giving to every person imprisoned by whatever authority the right to have the legality of his arrest and imprisonment passed upon by judicial authority. When, therefore, the Constitution declares in this clause that "the privilege of the writ of habeas corpus shall not," etc., it necessarily speaks of the writ of habeas corpus which obtained in each of the States comprising the Union. It is natural, therefore, as has been settled by decisions, that the writ of habeas corpus cannot under this clause be suspended. The privilege may be; the writ never.² The form of the clause is a negation of the power to suspend except under certain circumstances, which are mentioned; which is a negative pregnant with affirmation that power to suspend it is only given when those circumstances arise.

§ 316. What Federal authority can suspend this privilege? The answer is distinct: No power but Congress can suspend it; the President cannot.

1st. England, from which we obtain Magna Carta, Habeas Corpus, and the fundamental principles of our bill of rights, has settled this question there. In the thirty-ninth chapter of Magna Carta, it is declared that no free man shall be ar-

land or the judgment of his peers. His liberty is protected by law, and cannot be stricken down by royal power. Therefore this principle of English liberty, the law which established habeas corpus and protected liber homo from any deprivation of liberty, could not be repealed by any other than the power which enacted it; nor could the king repeal temporarily, by suspension, the law enacted by Parliament. This pivotal principle in the English Constitution was the turning point of the English revolution of 1688-89. And the trial of the seven bishops and the verdict in that case was the vindication by the English people of the irrepealability of an English law by the suspending power of an English king. The last of the Stuarts lost the throne by insisting on his power to dispense with a law of the kingdom. In England, therefore, since the revolution of 1688, the king has not sought to exercise the power of dispensing with habeas corpus. If he could, English liberty would be dead, because subject to suspension at the will of an English king.

2d. The history of the debates in the convention leads to the same conclusion. In Pinckney's plan, the privilege of the writ was not to be suspended except in cases of rebellion or invasion.¹ Subsequently Mr. Pinckney proposed a clause "that it shall not be suspended by the Legislature, except," etc.² Rutledge and Wilson thought suspension should never be allowed. But by a vote of seven to three the clause was adopted in substantially its present form. It was never referred to as subject to suspension except by Congress.

3d. The power of suspension was in the legislative article, and between two clauses, and in a section which related exclusively to legislative power. So, noscitur a sociis, was the power to suspend a legislative act of the States only in the legislature.

4th. The power to suspend the privilege of a writ must be in one of the departments. It cannot be that the judiciary

could suspend a writ grantable by a court ex debito justicii to a citizen; nor was there any mention in the enumerated powers of the President. Suspension in fact was to repeal pro tempore. How could the President repeal permanently or for a time a law of Congress? A fortiori, how repeal a right imbedded in the foundation law of the State, and recognized as a constitutional right in this very clause?

5th. In the convention it was distinctly proposed that the President should have the power to suspend a law for a certain term. Ten States vote no without an affirmative vote. The only time that the authority to suspend the privilege of the writ of habeas corpus is mentioned is in connection with Congress, and with none other.

Furthermore, as the power is not given to the President in express terms, it would have to be implied as necessary and proper to carry out Presidential powers. But these means which are necessary and proper for this purpose are vested in Congress itself, as we have seen, by the words "to make all laws which shall be necessary and proper for carrying into execution, etc., powers vested by this Constitution ... in any department or officer thereof."¹

§ 317. Again, Congress has sole power to declare war and to provide for the suppression of rebellion. The President has neither. This clause prohibits the suspension of the

writ, unless when in case of rebellion or invasion the public safety may require it. As Congress is charged with the public safety in cases of rebellion and invasion, it would seem to follow that Congress may have the power to suspend the writ of habeas corpus when its exercise would endanger the public safety. Congress alone can determine when the war shall begin, and therefore when the occasion has arisen for its suspension. If the President has power to declare war, as seemed to be held in the Prize Cases,² and to continue it indefinitely, as was decided by the Supreme Court in reference to the end of the Civil War by the Presidential procla-

mation, then the power of the President to suspend the privilege of the writ of habeas carpus would be dependent on his own authority to declare and perpetuate a rebellion at his own pleasure. In this view, how can it be supposed that the framers of the Constitution intended to give this extraordinary authority to destroy human liberty to the

President, during a period of war which can never cease by a treaty of peace, except with the consent of the President; or of a civil war, which the courts have decided continues until its cessation is declared by the Presidential proclamation?

6th. Judge Story,¹ speaking of who shall decide whether the exigency has arisen for a suspension, uses this language: "It would seem, as the power was given to Congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether such exigency has arisen must exclusively belong to that body." Judge Tucker² says: "In England the benefit of this important writ can only be suspended by authority of the Parliament.... In the United States it can be suspended only by the authority of Congress." Mr. Hamilton³ refers to this clause as being equivalent to an important article in a bill of rights to secure liberty. How feeble would have been his citation of this, if those who demanded a bill of rights had been able to charge that the privilege of the writ of habeas corpus was suspensible by the one-man power. The truth is, it may be safely said that no respectable lawyer before the Civil War, nay more, no lawyer, had ever asserted that the privilege of the writ could be suspended by any power except Congress. Mr. Blackstone⁴ says: "But the happiness of our Constitution is, that it is not left to the executive power to determine when the danger of the State is so great as to render this measure expedient; for it is the Parliament only or legislative power that, whenever it seems proper, can authorize

the Crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons, without any reason for so doing."

Besides the American authorities already cited, Chief Justice Marshall, in delivering the opinion of the Supreme Court in the case of Ex parte Bollman,¹ prefaces what will be quoted by stating that, in the great judiciary act of 1789, Congress secured the liberty of the man by authorizing the issue of this great writ by all the courts, and then adds: "If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws."

§ 318. It is thus seen that, at the time of the adoption of the Constitution, no power in Great Britain could suspend the writ of habeas corpus except Parliament. Parliament may suspend the privilege of the writ, or rather authorize the Crown to suspend it, in order that in case of public danger a suspected person may be arrested without the giving of reasons for the arrest or detention. To give to the Crown the power to suspend in order to arrest would be to unite the legislative power with the executive, which, under the maxim of Montesquieu, would be unbridled tyranny.

During Jefferson's administration he recommended to Congress the suspension of the writ of habeas corpus during the Burr conspiracy. Congress refused to do so, and the President never assumed the power or pretended to claim it. It is obvious if the President can create the status of civil war, as was decided in the Prize Cases,² and when this status of war is brought about the President can close it by proclamation, as was decided in a case already cited, then it follows that the President would have power to create the status of war, in order to declare that the public safety required the suspension of habeas corpus, and to suspend it by executive act until

he should declare the war at an end. Contrasting this assumption of power for the executive with the power of the Crown in Great Britain, it may well have been said that on such a construction the Constitution would have conferred upon the President "more regal and absolute power over the liberty of the citizen than the people of England have thought it safe to entrust to the Crown; a power which the Queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles the First."

In Ex parte John Merryman,¹ the question arose in 1861 of where the power resides to suspend the privilege of habeas corpus. On the 26th of May, 1861, before Congress had met after the outbreak of the Civil War, the President had assumed the power as an executive prerogative to declare that civil war existed, and on the basis of that declaration assumed in May, 1861, not only to suspend the writ of habeas corpus, but to confer that authority upon the military commander in the district of Maryland. Merryman was imprisoned in Fort McHenry in the State of Maryland, and filed a petition for habeas corpus before Chief Justice Taney to be released from an arrest made on the 20th day of May, and detention by General Cadwalader of his person without warrant from any judicial officer, but upon the general charge of treasonable acts against the government. The Chief Justice issued the writ of habeas corpus, directing General Cadwalader to appear and produce the body of John Merryman, and to certify and make known the day and cause of the capture and detention of the said John Merryman, and to submit to and receive whatsoever the said Chief Justice should determine upon concerning him in this behalf, according to law, and to have then and there the said writ.

General Cadwalader made a return declaring that he was duly authorized by the President of the United States to suspend the writ of habeas corpus for the public safety, and declined to produce the prisoner. Thereupon the Chief Jus-

tice issued an attachment against General Cadwalader for contempt, and delivered the same to the marshal. The marshal made return that he was unable to serve the attachment upon General Cadwalader by reason of military force. The Chief Justice, in an impressive opinion, decided that the civil process had been subordinated to military power by the action of General Cadwalader under the assumed orders of the President. He decided that the assumed power of the President was contrary to the Constitution of the United States; that the suspension of the writ of habeas corpus was a legislative power; that the President, under his duty to take care that the laws be faithfully executed, was bound to uphold and aid the judicial power, and not to oppose and defy it; and, referring to the nature of the British Constitution on this question, and the opinion of Chief Justice Marshall in Ex parte Bollman, and to Judge Story's Commentaries, he closes his opinion in this language: "In such a case my duty was too plain to be mistaken. I have exercised all the power which the Constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall therefore order all the proceedings in this case, with my opinion, to be filed and recorded in the circuit court of the United States for the district of Maryland, and direct the clerk to transmit a copy, under seal, to the President of the United States. It will then remain for that high officer, in fulfillment of his constitutional obligation to ' take care that the laws be faithfully executed,' to determine what measures he will take to cause the civil process of the United States to be respected and enforced."

The President never acted in the matter so as to release Merryman; and the suspension of the privilege of the writ of habeas corpus by military force was allowed to have effect at the will of the executive against the judicial mandate of

the venerable Chief Justice of the United States. Thus the only proceeding in our annals up to that time which could be regarded as a precedent for the use of the executive power to suspend this great privilege was in the exertion of the military power of the President to enforce the authority of the military over the civil jurisdiction of the courts; and so the only judicial precedent is the emphatic decision in this case that the only power that could suspend this privilege is in Congress, and not in the President. The tenor of the opinion of the court in Milligan's Case^l sustains the principles of the decision of the Chief Justice in Merryman's Case.

§ 319. Another case well calculated to shock the public sentiment of the country in respect to the danger of the military power has occurred. In violation of the fifth amendment to the Constitution, to be hereafter referred to, Mrs. Surratt, a woman, not a soldier in the army of the United States or subject to militia duty, was arrested and tried by a court-martial for the deplorable assassination of President Lincoln, which tribunal, by the fifth amendment, had no jurisdiction in such cases. She was condemned to death. She sued out a petition for the writ of habeas corpus to bring under the jurisdiction of the civil courts in the capital of the country the power of the court-martial to condemn her to death. The writ was issued by Mr. Justice Wiley, one of the judges of the District of Columbia. With the precedent of General Cadwalader's defiance of the order of Chief Justice Taney before them, the military disobeyed the order of Mr. Justice Wiley, and this woman, in the shadow of the capitol, under a jurisdiction utterly unconstitutional, and by a military power in defiance of the jurisdiction of the civil courts, was hung. It will be perceived, therefore, that the suspension of the writ of habeas corpus screened the unconstitutional jurisdiction of the court-martial from the scrutiny of the civil courts, and under cover of this the military power was left without restraint to work the death of its victim in defiance of the Constitution of the country. This con-¹ 4 Wall. 2.

struction, therefore, is not only fatal to the liberty but to the life of the citizen, and puts his liberty and life in the hand of the executive.

Several years after hostilities ceased, the trial of McCardle by military power under the provisions of the Reconstruction Acts was attempted to be averted by invoking the benefit of the writ of habeas corpus. We have seen how it was attempted to remedy the denial of that writ in obedience to those acts by an appeal to the Supreme Court of the United States, and how the Supreme Court was divested of its jurisdiction upon appeal to grant to McCardle the benefit of its great power to rescue him from the prospect of military trial by the law repealing the clause of the previous act granting it the power to consider the case upon appeal. The history of these unhappy precedents is given only to exhibit the dreadful evils of a departure under any exigency from the sacred provisions of the Constitution of the country, and to note them, we hope, as the only cases in all our future as in all our past history which will endanger the life and liberty of the citizen so fully protected by the noble provisions of the Constitution of the United States.

The States are not forbidden to suspend the writ of habeas corpus by any provision of the Constitution of the United States, and the power of the States to do so is not restricted by the conditions upon its exercise by the Federal power which occur in this clause.¹

The true view of this important restriction upon Federal power is that the framers of the Constitution felt that occasions might arise of public danger in time of war or civil commotion when the arrest of a person might be proper, though there might be no sufficient proof to establish a treasonable purpose before a civil court. It was obviously a power by arrest and detention to prevent the evil results which would flow from leaving the accused to carry out his designs unrestrained, and to hold him in order to the safety of the country. It was never intended that this detention ^l Luther v. Borden, 7 How. 42.

should be followed, under cover of the suspension of the privilege of the writ of habeas corpus, by prosecution, conviction and punishment, and in the deprivation of his liberty or life. Prevention, not punishment, was the object of this clause. The case cited was an abuse of the suspension of the privilege of the writ of habeas corpus by the violation of the fifth amendment of the Constitution in the unconstitutional trial, conviction and punishment of the offender.

§ 320. "No bill of attainder or ex post facto law shall be passed."^l The same restriction was imposed upon the States.²

We may consider this subject in its application to Congress and to the States. Bills of attainder were not within the judicial power of Parliament. The judicial procedure was by impeachment by the House of Commons and trial by the House of Lords. A bill of attainder was the legislative act of Parliament.³ These acts of Parliament to attaint particular persons of treason or felony, or to inflict pains and penalties beyond or contrary to the common law, to serve a special purpose, are, to all intents and purposes, new laws made pro re nata, and by no means in execution of such as are already in being.⁴ These acts charged persons named in the bill with criminal misconduct, convicted them, and adjudged the penalty of death with forfeiture of property. They were passed to reach cases where the evidence of guilt was not sufficient for judicial conviction, and sometimes for obnoxious conduct not made criminal by existing law, and therefore making criminal by after-law what was not criminal when done. The accused was generally denied a hearing. It was the union of legislative and judicial power in the same hands, which, under Montesquieu's maxim, was the "essence of tyranny." The legislature made a deed not crim-

inal at the time done a mortal offense, and sat in judgment upon the accused to carry out by judicial forms what had been enacted by the so-called judges.

Besides these bills of attainder there were bills of pains and penalties, which only differed from the former in that the penalty was less than death. During the Revolutionary period such bills were passed in some of the colonies, one case of which came before the Supreme Court, the case of Cooper v. Telfair.¹ That case grew out of a bill of pains and penalties. In New York bills of attainder were passed confiscating the property of offenders, and condemning them to death without hearing and without the form of trial.² But these acts of the State were passed before the Constitution went into effect. In the convention of 1787 the clause as to bills of attainder was passed nem. con. As to the clause relating to ex post facto laws, passed by a vote of seven to three, many members thought that it was unnecessary to insert such a provision, Mr. Ellsworth holding that ex post facto laws were void of themselves.³ The tyrannical character of a bill of attainder has been exposed by a number of writers.⁴

In Fletcher v. Peck⁵ the Supreme Court said: "A bill of attainder may affect the life of the individual or may confiscate his property, or both." In this clause the power of the legislature over the lives and fortunes of individuals is expressly restricted. This definition includes the technical bill of attainder, as well as the bill of mere pains and penalties, and was so interpreted by Justice Story, ubi supra. The question has been very fully considered in two cases, Ex parte Garland⁶ and Cummings v. Missouri."

In Ex parte, Garland the court defined a bill of attainder as "a legislative act which inflicts punishment without ju-

⁴ Story's Commentaries, 1338, citing Dr. Paley; 1 Tucker's Blackstone, Appen., 292; Rawle on the

dicial trial;" and held in that case that a bill of pains and penalties was within the prohibition of bills of attainder. Garland's case was shortly this: Garland was admitted as an attorney before the Supreme Court in 1860 and duly qualified. He took part in the rebellion. In 1865 he was granted a full pardon upon the strength of an oath which he took and subscribed. He produced his pardon before the court and asked permission to practice. Congress in January, 1865, passed, an act that no person should be permitted to practice, or be permitted to appear and be heard, at the bar of the Supreme Court or any other court of the United States, unless he should have first taken and subscribed an oath known as the iron-clad oath, by which he should swear that he had given no aid, etc., to the rebellion. His application was argued by counsel. The court decided that to exclude him from the practice of law in the Federal courts or from any other avocation of life for past conduct was punishment; that the act of Congress of 1865 was a bill of pains and penalties, and as such was forbidden by this clause in respect of bills of attainder, and that the pardon of the President reached the punishment as well as the offense of treason. If granted before conviction, it prevented any penalty attaching consequent on conviction; if granted after conviction, it removed that penalty. The court admitted him to practice.

In Cummings v. Missouri the provision of the Constitution of Missouri requiring preachers and teachers, in order to continue in their professions of preaching and teaching, to take an oath equivalent to the iron-clad oath before mentioned, was brought in question. The court held that this clause of the Constitution of the State presumed the guilt of the man and adjudged the deprivation of his right to teach and preach, unless the presumption was removed by the expurgatory oath. They assumed the guilt, and adjudged the

punishment conditionally. This amounted to condemnation and punishment nisi. This was equivalent to an ex post facto law in inflicting a penalty which did not attach to the al-

leged offense at the time committed, and changed the evidence upon which conviction could have been had, by first assuming the guilt and condemning for it, unless the accused established his innocence by an expurgatory oath. The opinions in these two cases are learned and full, and rest upon the definition of an ex post facto law as made by Chief Justice Marshall in Fletcher v. Peck, supra. He says an ex post facto law is one "which renders an act punishable in a manner in which it was not punishable when it was committed." So in Fletcher v. Peck the Chief Justice held that the State of Georgia could not take an estate from Fletcher derived from the State itself for any alleged criminal action on the part of its legislature, any more than it could have taken the estate from him through the form of an ex post facto law or bill of attainder for any offense of his own.

The State of West Virginia passed an act in September, 1863, providing that where a judgment was rendered against a non-resident in an action in which an attachment issued without personal service or other process in the suit and without his appearance, such defendant had a right, upon returning to the State, to have the proceeding reheard and make a defense. In the case of Pierce v. Carskadon^l a judgment was entered against Pierce under an attachment in December, 1864. He appeared within a year and asked leave to file his petition for a rehearing in the case. It was refused, because it did not conform to the law passed in 1865 requiring it to be accompanied with an oath similar to the iron-clad oath already referred to. The court of appeals of West Virginia affirmed the decision of the lower court. Pierce appealed to the Supreme Court of the United States, because the act of February, 1865, requiring such oath as a condition of the exercise of a civil right was an ex post facto law. The Supreme Court reversed the decision upon the authority of Ex parte Garland and Cummings v. Missouri, supra. This clause in reference to bills of attainder and ex post facto laws is in accord with all the fundamental prin-

ciples of Magna Carta which have been imbedded in the Constitution of the United States by these clauses of prohibition upon Federal as well as upon State power.

§ 821. An ex post facto law (out of or by after-made law) requires a little more consideration. It is a retrospective law, but not so in application to civil matters, but as to crimes and criminal matters. Mr. Justice Johnson, in Satterlee v. Matthewson,¹ held that the term "ex post facto" should be applied to past transactions of a civil as well as of a criminal nature. But these views did not prevail. The addition to the words "bill of attainder, ex post facto law" of the words "or law impairing the obligation of contracts"² would seem to show that ex post facto laws, which would clearly embrace a law impairing the obligation of contracts, may have referred to criminal and not civil matters. A very satisfactory piece of evidence on this point is found in the proceedings of the convention. Mr. King moved a prohibition on the States to interfere in private contracts. Mr. Madison suggested that that was covered by the prohibition as to ex post facto laws.³ The next day Mr. Dickerson mentioned the fact that Blackstone said the terms ex post facto related to criminal cases only; that they would not consequently restrain the States from retrospective laws in civil cases, and that some further provision for that purpose was requisite.⁴ The clause in reference to the obligation of contracts was introduced by the Committee of Style, which interpreted the words ex post facto as applying only to criminal matters. This was judicially passed upon in the case of Calder v. Bull,⁵ and the full extent of its meaning was explained by the court. A law was held to be ex post facto:

1st. When the act previously committed, and then innocent, was by after law made a crime.

2d. When the after-made law increased the grade of criminality of a previously committed crime, as from misdemeanor to felony.

4th. When the after-made law changed the rules of evidence, making less or different testimony necessary to convict, or changed essentially, and not formally merely, the modes of trial.

In the case of Kring v. Missouri,¹ a plea of guilty of murder in the second degree, on appeal was reversed and set aside. Kring was subsequently convicted of murder in the first degree. By the law in force when the homicide was committed, a conviction of murder in the second degree was an acquittal of the charge of murder in the first degree. But after the offense, and before the plea of guilty was entered, the law was changed, so that if a judgment on that plea was lawfully set aside, it would not be held an acquittal of the higher crime. It was held that in this case the new law was ex post facto and there could not be a new trial for murder in the first degree. Mr. Justice Miller, in delivering the opinion of the court, gave a history of the clause which is interesting and instructive. A majority of the court held, citing United States v. Hall,² that any law passed after an offense committed, which, "in relation to that offense or its consequences, alters the situation of a party to his disadvantage," is an ex post facto law; and, in the language of Denio, J., in Hartung v. The People,³ "no one can be convicted and punished in this country unless according to the law prescribing the punishment by the sovereign authority at the time the offense was committed."

In Hopt v. Utah,⁴ under a law existing at the time of the commission of the offense, persons convicted of felony, unless pardoned or judgment reversed, were not competent witnesses. By a law passed after the date of the alleged offense such persons were made competent witnesses, and it was held that statutes temporarily enlarging the class of persons so made competent to testify are not ex post facto,

for they do not alter the degree or lessen the amount or measure of proof necessary to conviction when the crime was committed. This decision was unanimous. But qu�re: Is a law making baron and femme competent witnesses against each other after crime ex post facto? The case just cited might seem to hold the affirmative; but in that case the disability removed affected only the personal credibility. The relations of baron and femme, so confidential in the status existing at date of crime, ought not to be allowed to be betrayed by after-law on attempted evidence of facts not admissible at the date of the offense.

In the case of Murphy v. Ramsay^l it was held that the deprivation of a bigamist's right to vote under an act passed in 1882 was not an ex post facto law. It defines the qualifications for exercising political functions, and does not punish for the offense of bigamy; nor is the divesting of a civil right an ex post facto law, for that applies only to criminal matters; nor does it forbid a State to divest rights unless it impairs the obligation of a contract.²

The Constitution of West Virginia in 1872 declared that the property of a citizen of the State should not be sold under process issued upon judgment heretofore rendered because of any act done in the prosecution of the war of the rebellion by either of the parties thereto. It was held that when this applied to a judgment founded upon a tort committed as an act of public war, it was not the impairment of the obligation of a contract, because based on tort; and that a bill in equity to set aside such judgment was due process of law, and was in no wise in conflict with the Constitution of the United States.³

In Medley's Case⁴ a State statute, passed after the commission of a murder which adds to the punishment of death, the punishment when the crime was committed, the further pun-

ishment of solitary confinement until the execution, was as to such convict an ex post facto law, and a sentence inflicting both punishments was void. And so in a case where the statute conferred upon the warden the power to fix the day of execution and compelled him to withhold the knowledge of it from the offender, when neither of these provisions was part of the law of the State when the offense was committed. In this case the doctrine stated in Kring's Case, supra, was affirmed. If, however, the after-law requires the execution to be before sunrise on the day fixed, and within the jail or other inclosure higher than the gallows, thus excluding the view of people outside, and limiting the number who may witness the execution, these are regulations not affecting the rights of the convict, and are not ex post facto; and are to be distinguished from Medley's Case.

§ 322. The next provision runs, "No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken."^l This refers to the previous clause.² This subject has been sufficiently discussed under the head of the tax clause,³ and in the cases there referred to,⁴ and also in very recent cases.⁵This clause is the negation of any other mode of levy of direct taxes, except in the manner affirmatively established in a previous clause.⁶

"No tax or duty shall be laid on articles exported from any State."⁷ The history of this provision and its importance as a part of the great compromise made in the convention between the navigation and commercial States and the cotton States has been fully given, and need not be repeated here except by this reference. The clause for-

⁴ Hylton v. United States, 3 Dall. 171: License Tax Cases, 5 Wall. 462; Springer v. United States, 102 U. S. 586.

⁵ Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429. Same case reheard, 158 U. S. 601.

bids the laying of a duty or tax on articles exported. This applies as far as the word "duty" is concerned to the article as a subject of export when it puts on the character of an export; but lest there might be an evasion of the substantial purpose of the clause by laying a burden upon the article before it assumed the character of an export, the word "tax" was obviously added; and the phrase "on articles exported" was substituted for the simple word "exports," elsewhere used. The whole clause then means that the taxing and duty power of the government should not be laid as a burden on the products of any of the States, which were to be exported. Hence the discussion which arose in the cases previously cited as to the stamp required by law to be placed, as a means of identification, on tobacco which was intended to be exported, in order to prevent its being sold in the domestic market, evading exportation. The question might be raised whether the prohibition applies to articles exported from one State to another, but this has been settled in the negative. It applies to exportation only from any State to a foreign country.¹ Some cases hold a different view, but there is strong reason for believing that it was never intended that articles exported from a State to another should be subject to tax or duty by the State or by Congress.

§ 323. "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another."² The latter part of this clause explains the mode in which preference might be given by a regulation of commerce or revenue to the ports of one State over those of another. Preference between the ports of the same State in this respect was not forbidden; but the commercial and revenue power

¹ Cooley v. Wardens of the Port of Philadelphia, 12 How. 299; Almy v. California, 24 id. 169; Pace v. Burgess, 92 U. S. 372; Turpin v. Burgess,

117 id. 504; Woodruff v. Parham, 8 Wall. 123. ² Const. U. S., Art. I, sec 9, clause 6.

of the Federal government without this prohibition might be used to the great advantage of some States and to the great disadvantage of others.¹

In State of Pennsylvania v. Wheeling and Belmont Bridge Co.,² it would seem from the language of Justice Nelson that this prohibition upon the otherwise exclusive power of Congress to establish ports of entry and clearance throughout the Union was restricted so as to require Congress to allow the vessel bound to the port of a State to enter at that port and deliver its cargo, and not to be required to go to a preferred port in another State. But Congress may make preference between the ports of the same State, and requiring a vessel going to a particular point, for instance, to enter or clear and pay duties at that port preferably to any other port of the State.

§ 324. "No money shall be drawn from the treasury, but in consequence of appropriations made by law."³ This is an important provision, inasmuch as, in connection with the tax-laying power already discussed, it puts under the law-making power � that is, Congress � the power to lay and collect taxes; that is, the power of gathering in the funds necessary for governmental purposes, and gives also to Congress the power to appropriate it; and that between the collection and the appropriation, the money shall be in what was denominated the treasury, from which it cannot be withdrawn by any but by the law-making authority. In the early period of English history the assessment of taxes in the shires was adjusted between the quasi-judicial officers of the exchequer and the shire authorities; and the collection of the taxes was very largely under the power of the Crown, although the original idea was that revenue was a grant by the people to the Crown and not an exaction by the Crown from the people. At a later day Parliament insisted that the revenue collected should be under the control of Parliamentary officials, and not of offi-

cers of the Crown, and that they should be held subject to Parliamentary appropriation. The contention between the Crown and Parliament is described by Dr. Stubbs,¹ out of which emerged the practice that taxes should be assessed and collected and held by officers of Parliament, whose accounts of expenditures should be audited under the supervision of Parliament, thus keeping the revenue from the possession or control of the Crown, except when it had been appropriated by acts of Parliament.²

At an early period the levy of customs duties was claimed as part of the royal prerogative over commerce; but that was never conceded, and ever since the House of Stuart was expelled from the throne of England it has been abandoned; and the royal prerogative over trade includes no power to lay duties upon exports, the exercise of which is held to be exclusively under the control of Parliament.³ It is clear that the claim by Parliament of the right to collect revenue and grant it to the Crown is wholly inconsistent with any power in the Crown or its officials to do so free from the supreme control of Parliament. If the King collected and held the revenue under his authority, the Parliamentary power to grant subsidies and appropriate money to the Crown would be a sham. Hence all the machinery, not only for levying but for collecting and keeping the public revenue, is under the supreme control of Parliament. The freedom of grant would be transformed into the enforced exactions of the King if the revenue were, through the machinery of collecting and keeping, directly or indirectly under the royal power, and the device of appropriations for the army for one year only, would cease to be any check upon the prerogative. It is the independent holding of the revenues within Parliamentary hands that effects the divorce of the purse from the

² Id. 598, note 5; Stubbs' Select Charters, 352, 361, 364. 366; Greens History of the English People, 175-

Crown, and which makes prerogative impotent in its assaults upon liberty. This clause of our Constitution is the embodiment of these principles of English liberty into the fundamental law of the land. While, therefore, the President appoints all the officers of the government, their functions, powers, duties and responsibilities are prescribed by law, and make them independent of the authority of the President. In the first Congress the State Department was established by law, July 27, 1789, and its Secretary was to perform such duties as should be entrusted to him by the President of the United States. This was because the President has confided to him, by the second article of the Constitution, the conduct of foreign affairs. The Secretary of State was subordinate to the constitutional power of the President.

The War Department was established in 1789, and its Secretary was to perform the duties entrusted to him by the President of the United States, as to the land and naval forces, because they belonged to the Executive Department; the President by the Constitution being commander-in-chief of the army and navy of the United States. But in the organization of the Treasury Department we find a remarkable change. The Secretary of the Treasury was to be deemed the head of his department. His duty was to superintend the collection of the revenues, to grant warrants for money from the treasury if appropriated by law, etc. The office of Treasurer was created by the same act, the duties being to receive and keep the money of the United States, and to disburse the same upon warrants drawn by the Secretary, countersigned by the Comptroller, and recorded by the Register of the Treasury, and not otherwise. It is striking evidence of the motives of Congress in this peculiar legislation that the report of the Secretary of the Treasury is made to Congress and not to the President, while the reports of the heads of other departments are all made to the President. The officers of the revenue cutters provided for the collection of customs were deemed officers of customs and not of the navy, as had been suggested by Mr. Secretary

Hamilton. Had they been officers of the navy they would have been under the control of the President; as officers of customs they are under control of the Secretary of the Treasury. This legislation under these constitutional provisions shows that the doors to and from the treasury are under legislative control, and the key is in the hands of Congress. The obstructions to drawing money from the treasury, except through sworn officers, without whose concurrent action the custodian of money in the treasury can never permit it to pass from him, make the appropriation by a law of Congress to be the only pass-key to the vaults of the treasury, as the Constitution intended; and all legislation which Congress is authorized to pass as necessary and proper to carry this important provision into execution must be directed to the point of fencing the contents of the treasury beyond the reach of any other power than the Congress of the United States. The last provision of this clause was fully commented on in the convention: that the people by public reports from time to time should be made aware of the collections of money as well as of its disbursement.

§ 325. The last clause of the ninth section reads as follows: "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 Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign State."¹

The first provision as to title of nobility is correlative with the last words of the following section declaring that no State shall grant any title of nobility; and both of these may be taken in connection with the clause² already considered requiring the guarantee to every State of a republican form of government. This perfect equality of all of the citizens of the country with no fixed customs or rank of nobility admitted among them, and none capable of being created by the Federal or State authorities, is the exclusion from both branches of our Federal system of the possibility of mon-

archy or aristocracy in the form of government, and the guarantee of republican forms of government to every State in the Union as well as to the government of the Union of the States. The latter part of this clause was intended to exclude everything like foreign influence in the form of express bribery or of gifts, which, though more insidious, are not less hurtful, in respect to any one holding an office of profit of trust under them, that is, the United States. What persons hold offices of profit or trust under the United States has been already considered somewhat when it was found that senators and representatives are not officers of the United States, but delegates and representatives of the several States. But the President, Vice-President and other officers, such as judges, public ministers, the heads of departments, and all subordinate officers, are persons holding offices of profit and trust under the United States. However indelicate, therefore, it may be for members of either House of Congress to accept presents from any foreign State, they are not prohibited from doing so by this clause of the Constitution.

This ninth section of the first article is the prohibition or limitation on the previously delegated powers of Congress, or upon any possible implication of power from the preceding grants of power; but they were not considered enough to meet the loud demand for something more definite in the shape of a bill or declaration of rights. Accordingly Congress, at its first session in March, 1789, passed resolutions proposing amendments to the Constitution, twelve in number, with this preamble: "The conventions of a number of the States having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution." As a matter of historic record it is therefore true that these proposed amendments were intended to prevent misconstruction or

abuse of its powers by the declaratory and restrictive clauses. The first two articles proposed were never ratified.

As limitations upon the powers of the Federal government, it is proper now to consider these amendments, after having considered the original limitations and restrictions imposed in the Constitution itself. That these ten amendments are to be regarded as limitations on the powers of the Federal government, and not upon the powers of the States, has been well settled by a large list of judicial decisions.¹

¹ Barron v. Mayor and City of Baltimore, 7 Pet 243; Permoli v. First Municipality of New Orleans, 3 How. 589; Fox v. Ohio, 5 id. 410; Withers v. Buckley, 20 id. 84; Twitchell v. Commonwealth, 7

Wall. 321; Anarchist Cases, 123 U. S. 131; Bradley v. United States, 98 id. 105; Presser v. Illinois, 116 id. 259; Boyd v. United States, id. 616; Eilenbecker v. District Court of Plymouth Co., 134 id. 31.

§ 326. The first of the ten amendments is in these words: "Congress shall make no law respecting an establishment 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."

The first branch of this article is in respect to religion. Several of the States, and notably Virginia, had in their acts of ratification denied the power of the United States under the original Constitution to prohibit, abridge, restrain or modify the liberty of conscience and of the press, and enjoined the same views in a proposed bill of rights. These various propositions from the States resulted in this and the other amendments proposed in the First Congress. The language used is very comprehensive, not only forbidding a law to establish a religion, but any law respecting the establishment of a religion. This may be considered in connection with article VI, clause 3, of the original Constitution, forbidding the requirement of any religious test as a qualification for public office. Nor is the amendment to be regarded as the concession of a power in Congress as to the matters forbidden in this clause, which conceded power is to be restricted only by the terms of this clause. The ratification of Virginia just referred to excludes this view, and similar language in other ratifications confirms it, and the preamble to the Congressional proposal of these amendments is also conclusive. These were not limitations upon powers granted by the original Constitution, but were inserted, as the Con-

gressional preamble expressed it, "in order to prevent misconstruction or abuse of its powers." In 1887 the Mormon act which disestablished the Mormon Church was passed, and its constitutionality was fully sustained in the case of The Mormon Church v. United States.¹ Congress had no right to establish the Mormon Church under this amendment, nor could a territorial legislature, deriving all its powers from Congress, do that which Congress could not do. This was the ground taken in Congress. In the original bill it had been proposed to carry on the Mormon Church by the appointment of thirteen persons by the President and Senate to co-operate with the church authorities in its management. This would have been a law respecting the establishment of a religion and a direct union of Church and State. The only alternative was the disestablishment of the church and putting it, as to the free exercise of its religious views, upon the same footing as all other religious societies. All laws giving special privileges to the Mormon Church were repealed by Congress.²

What is an abridgment of religious freedom has been a question of recent adjudication. Mr. Jefferson, following the bill of rights of Virginia of June 12, 1776, drawn by George Mason, drew the Act for Religious Freedom adopted December 16, 1785.³ Its preamble states with nervous energy, fervid eloquence and logical precision the basis of all religious liberty. In that preamble he says: "That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on the supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty.... It is time enough for the rightful purposes of civil government, for its officers to interfere, when principles break out into overt acts against peace and good order."

divides it from the realm of conscience, but conscience must not break over the same boundary to invade the realm of civil power. As long as religion is a matter of the conscience the civil power must not invade it; but when religious conscience violates the rights of others and disturbs social peace and order it must be restrained within its own domain, and excluded from the civil realm which it may not control. Accordingly the act of Congress of 1882, which punished Mormons for bigamy, was held constitutional because not abridging religious freedom.¹ And this view is vindicable without reference to the fact that it is a mooted question among them whether their creed enjoins polygamy or only permits it.

The next clause forbids the abridgment of the freedom of speech or of the press. By the act of July 14, 1798, Congress passed the celebrated Sedition law, by which inter alia it punished with fine and imprisonment as a public crime the writing, printing, uttering or publishing any scandalous and malicious writing against the government of the United States, or either House of Congress or the President, so as to bring them into contempt and disrepute, etc. This produced with its twin measure, the Alien law, such excitement in the country as resulted in the overthrow of the administration of John Adams and the election of Mr. Jefferson. They were the cause of the celebrated resolutions of Virginia and Kentucky in 1798, and of their celebrated vindication in Madison's report of January, 1800. In the discussion of the Sedition law, to which reference may be made,² Mr. Madison maintained its unconstitutionality upon the ground of its being an abridgment of the freedom of speech and of the press.

There were some prosecutions under these laws, and their constitutionality was maintained by some judges, but they were never before the Supreme Court for adjudication. The

¹ Reynolds v. United States, 98 U. S. 145; Cannon v. United States, 116 id. 55; Murphy v. Ramsay, 114 id. 15.

law of libel, as far as it affects private responsibility to the injured party, was for the States to fix and regulate. Clearly this was outside of the powers of Congress. To abridge the right of the citizen to discuss orally or in writing, and by publication, the public acts of the government and its officers, and the attempt to screen themselves from censure by such a law as the Sedition law, would seem to be too clearly within the prohibition of this clause of the Constitution to need further comment. If that law be constitutional, to what can this amendment, as to the freedom of speech and of the press, look for protection against the powers of Congress? On the law of libel in England, Hallam has a comprehensive statement to which reference may be made.¹ By section 3894 of the Revised Statutes of the United States, a penalty was inflicted upon any person who shall knowingly deposit in the mail any letter or circular concerning lotteries, etc. The case of Ex parte Jackson brought up for adjudication the question whether this was not an abridgment of the liberty of the press.² The Supreme Court held that Congress could determine what it would carry in the mails and what it would exclude therefrom; that in this case, as in case of obscene literature, which was prohibited access to the mails, it would not furnish the vehicles for carrying such literature.

In a subsequent case, In re Rapier,³ this decision was affirmed, but the court held that the right to transport such excluded matter in any other way would not be forbidden by this law. The case rests simply upon the proprietary right of Congress in the mails. It may be well objected that this interpretation of the Constitution is not consistent with its purpose. If the postal power and duty be conferred as an essential facility for the transmission of written and printed intelligence; if without postal facilities the press of the country, as the medium of information, political and otherwise, be di-

verted from the mails, and if Congress refrains from the use of this postal power and duty so as to interfere with the publication of newspapers and other printed matter, is it not an abridgment of the freedom of the press, by refraining from the exercise of power, and the non-performance of public duty, just as great as if it absolutely prohibited the transmission? The author, therefore, would consider this question disconnected with an immoral or criminal use of the mails an open question for reconsideration by the court.

The last clause, in reference to the right of the people peaceably to assemble and to petition the government, etc., has not been the subject of adjudication. This does not prevent interference with the riotous assemblages of the people; where there is no riotous conduct the government cannot interfere.

The right of petition for the redress of grievances is secured. There is no provision for action on the part of the person to whom the petition is addressed. It gives no assurance that the prayer of the petition shall be granted, or what consideration shall be given it. It simply protects the petitioners in their right to get up the petition, circulate it for signatures, and have it presented.¹ As to all of this article it will be observed that in terms it is only a limitation on Congressional power.

§ 327. The second amendment reads thus: "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."

This prohibition indicates that the security of liberty against the tyrannical tendency of government is only to be found in the right of the people to keep and bear arms in resisting the wrongs of government.² The case of Presser

v. Illinois^l arose out of an act passed by the State of Illinois prohibiting all bodies of men other than the regularly organized volunteer militia of the State from associating and drilling as such. The Supreme Court held that it did not conflict with this amendment, because the amendment is only a limitation of power on Congress, not on the States.

§ 328. "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."

§ 329. The fourth amendment is as follows: "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."

The origin of this amendment may doubtless be found in events that occurred in England about the year 1763. A practice had grown up in the office of the secretaries of the cabinet ever since the Restoration of issuing general warrants, arresting, without naming any persons in particular, printers, publishers and authors of obscene and seditious libels as were particularly specified in the warrant. These practices continued until 1763. They were brought up for adjudication before the King's Bench in Money v. Leach,³ and were adjudged illegal and void for uncertainty. It was held that a warrant must be issued by a magistrate upon the oath of an accuser, stating the name, time, place and nature of the offense with reasonable certainty.⁴ In Boyd v. United

States¹ a suit was brought for a penalty under the Customs acts. The law provided that the prisoner must produce the invoice in court for the inspection of the government attorney or else be taken to confess the offense. This was held a violation of this amendment. It is equivalent to compulsory production of papers, and it violates a subsequent amendment in compelling the accused to produce evidence against himself. This case was relied on in the case of Spies v. United States,² the Anarchist case, where in a State court the papers of the accused had been seized without warrant, contrary to this amendment. The court decided that this amendment did not apply to such a case, but limited only the powers of Congress and not of the States.

§ 330. The fifth amendment is in these words: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; 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 deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."

The first clause of this amendment involves the solution of an important question. The offenses to which the provision refers are in two classes: first, capital; second, otherwise infamous crimes. The first needs no exposition; the second requires the interpretation of what is meant by "infamous crimes." The word "otherwise" shows that a capital crime is infamous; but what is an infamous crime other than a capital crime?

Two late cases have involved the decision of this question. They decided that any offense was infamous for which the penalty was death or imprisonment in the penitentiary with or without hard labor. The place makes the infamy.¹ It was not decided, but it is a grave question, whether imprisonment in a jail with or without hard labor as the penalty for the offense would not be infamous. Could Congress by merely changing the place with an equal deprivation of liberty make an imprisonment in jail less infamous than imprisonment in the penitentiary. As to this, ideo qu�re. Story intimates that these words mean all offenses above the grade of misdemeanor. The provision against "twice in jeopardy" is a great privilege secured by the common law.²

The next question is as to the indictment or presentment of a grand jury. This excludes the prosecution of such offenses by information or otherwise than by presentment and indictment of a grand jury. In Bain's Case³ the grand jury found an indictment for an infamous offense. A demurrer to the indictment was submitted on a formal matter; whereupon the indictment was amended by the court. The trial proceeded and the accused was convicted and sentenced. He obtained a writ of habeas corpus from the Supreme Court, which held that the indictment on which he was tried was not the indictment found by the grand jury, hence the conviction was void and the prisoner was discharged.

Again, the exception to this stringent provision is found in "cases arising in the land or naval forces." Construing this clause with the clause "to make rules for the government and regulation of the land and naval forces,"⁴ it is obvious that it was intended to leave the trial of those who were in the army or navy to be tried for any such infamous offense according to the rules and regulations of war provided by Congress. The further exception is in cases arising in the

militia when in actual service. Comparing this with the clause "for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions,"¹ and with the clause making the President commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States, it is evident that those who are in the militia when in actual service of the United States are triable by the rules and regulations of war, and are not within the operation of this amendment.

In a late case the question was raised whether the words "in time of war or public danger" should be applied to the words "cases arising in the land or naval forces," or should be confined in their application to the words "or in the militia when in actual service." It was decided by the circuit court of the United States for Virginia against this objection of one in the army or navy to trial otherwise than by presentment and indictment of a grand jury, except "in time of war or public danger." The Supreme Court, upon appeal, decided that those words in time of "war or public danger" applied only to the militia, who could only be called into the actual service of the United States to repel invasions and suppress insurrections, or to enforce the law, and did not apply to, and were disconnected from, the words "cases arising in the land and naval forces."²

§ 331. Again, "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." These terms were those used in the common law, and include cases that involve liberty, which, indeed, is a part of life, and when taken away is, pro tanto, a deprivation of life, and prevents the government from subjecting the accused to a second trial after the previous conviction or acquittal. The power thus forbidden is one of unmitigated evil. If the government might try and try again to convict, the ultimate conviction of the accused would be assured. This does not mean to forbid a second trial where the first

has resulted in a failure of the jury to agree, nor in the case of a faulty indictment, because in neither case is the accused in jeopardy.¹ In Bain's Case, supra, the accused was tried again because he had not been in jeopardy � that is, tried in the only way in which he could be tried; that is, by a regular indictment.²

Again, "Nor shall be compelled in any criminal case to be a witness against himself." In Boyd v. United States³ we have referred to the requirement that a defendant should produce his books, or in the alternative be adjudged to confess his crime, and to the fact that this requirement was held to be repugnant to this clause of the Constitution. This case also decided that the requirement was an offense against the fourth amendment. A very stringent decision was rendered in the case of Counselman v. Hitchcock,⁴ under the Interstate Commerce Law. An officer of a railroad was compelled to answer a question in respect to the business of his road which he claimed tended to criminate himself. It was argued that there was no criminal case pending, and that therefore the clause did not apply. The court, upon an elaborate review of a number of cases, decided that he was not compelled to give testimony which might lead to a criminal prosecution of himself or to any procedure in which he would be endangered. Congress thereupon passed the act of February, 1893, which authorized the exemption of the party called from prosecution in respect to the subject-matter of his testimony. A very late case involving this question has been decided.⁵

Again, "Nor be deprived of life, liberty or property without due process of law." This prohibition upon the Federal power has been followed by the fourteenth amendment, which prohibits a State from depriving any person of life, liberty or property without due process of law, and comment

² Simmons v. United States, 142 U. S. 148. See also Craemer v. Washington State, 168 id. 124

upon this part of this amendment will be deferred until we reach the fourteenth amendment.

§ 332. Again, "Nor shall private property be taken for public use without just compensation." This is part of the eminent domain of every government. It is the sovereign power of the Body-politic to subject to public use property rights of private members of the Body-politic upon just compensation. It is in effect the same power which calls a man to give his life or limb or liberty in defense of his country. If his life may be subjected why not his property? This clause refers only to property rights, and limits this sovereign power by two important phrases. It must be taken for public use, and even for this only on just compensation. It includes every right in property of which a citizen may be deprived. A leading case is Eaton v. Railroad Co.¹ In that case it was shown that a hill which protected A's land from being flooded by a river intervened. The hill did not belong to A. The railroad company cut through the hill for its road, and through the aperture the flood came upon A's land. Held, that it took away his property rights and he must be compensated.² A taking which occupies the land of A without taking the fee, or by occupation or condemnation of a part of A's land will injure the residue, would probably be held to be a taking under this clause.³

Land taken for one use cannot by a trick be devoted to another use which supersedes the former, without compensation.⁴ And where an easement is taken in land, and subsequently the public takes the fee, the owner must have added compensation.⁵ In all these cases the judicial proceeding of

² Accord: Wynehamer v. The People, 13 N. Y. 378, 433; Thompson v. Androscoggin River Imp. Co., 54 N. H. 645; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 320.

³ Tuckahoe Canal Co. v. Tuckahoe & James River R. R. Co., 11 Leigh, 42; Newman v. M. E. R. Co., 118

N. Y. 618: Wilson v. Railroad Co., 59 Ill 273; Shipley v. B & O. R. R Co.. 34 Md. 336, cited in 1 Beach on Public Corporations, § 686.

⁵ Pierce v. Drew, 136 Mass. 78; Julia Building Ass'n v. Bell Telephone Co., 88 Mo. 258.

condemnation is required, and notice of the proceeding to the owner is essential.¹ Compensation need not be paid before condemnation, in case of a State, or perhaps in case of a municipality; but as to private parties, railroad corporations, etc., it is different. In the latter case the payment must precede or be contemporaneous with the taking. These questions are very elaborately discussed, and the cases upon them, in Dillon on Municipal Corporations,² and by Beach on Public Corporations.³

The Federal government, under this clause, which recognizes and limits its eminent domain for all purposes related to the necessary and proper execution of its powers in respect to the use, holding and title to the property of the citizen, may take what is necessary and proper for the execution of its powers, but can take only for public use and upon just compensation; and while Congress takes the initiative in this matter, and decides primarily whether it is a public use, it is subject to judicial decision as to whether it is a public use, and in respect to what is just compensation upon a full hearing, to which the owner shall be a party.

§ 333. The sixth article of amendment is in these words: "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 witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." It is appropriate to consider this article in connection with an article in the original Constitution,⁴ which reads

thus: "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." The fifth amendment, as has been seen, was directed to the mode in which the party shall be accused, and the way in which the grand jury makes the accusation. This sixth article, and the one considered with it, provide as to the trial of the party under the accusation and the conduct of the criminal prosecution.

1st. There is secured the right to a speedy and public trial. Speedy refers to the necessity of preventing a long imprisonment of an accused party before trial, but does not define the mode in which this speedy trial may be secured. In some of the States, e. g., Virginia, if a party's trial is deferred at the instance of the Commonwealth for longer than three terms of the court, he will be discharged. The trial must not only be speedy but it must be public. This is to bring the power of public opinion to bear against despotic procedure for the conviction of the accused, and to insure a trial where all his rights will be conserved.

Again: By whom shall the trial be had? By an impartial jury. Jury trial has been declared to be the palladium of English liberty; and it is the great security of American liberty. This is subject to the exception provided in the fifth amendment as to cases arising in the army, navy or militia. In all other cases jury trial is secured to the accused.

2d. It must be an impartial jury of the State where the crime was committed. This is by the terms of the article in the original Constitution; but the sixth amendment is more particular. It must not only be a jury of the State, but of the district wherein the crime shall have been committed, which district shall not be a district provided by a law subsequent to the offense, but a district which shall have been previously ascertained by law. This is intended to prevent

the choice of a jury from a district provided by ex post facto legislation, and which might thus do great injustice to the accused. Further, upon such trial he must be informed of the nature and cause of the accusation. If the crime is not committed in any State, as felony on the high seas or piracy, then Congress has power, before the offense is committed, to determine the place at which the trial of such criminal shall be held.¹ Upon his trial he must be confronted with the witnesses against him. The Supreme Court decided in Mattox v. United States² that this clause was not violated by the use upon the second trial for the offense of the copy of the testimony of a dead witness given upon the first trial when the witness was confronted with the accused. To use it upon the second trial was held to give to the accused the full benefit of this provision. Three judges dissented.

3d. The accused shall have compulsory process for obtaining witnesses in his favor. This was to correct a great grievance at the common law, which forbade the accused to exculpate himself by the testimony of any witnesses. The House of Commons soon after the accession of the House of Stuart to the throne had a bill passed which affirmed the right to have process for witnesses for as well as against the accused; and in the seventh of William III. and in the reign of Queen Anne the rule was extended to all cases of treason and felony.³

The last clause of this amendment removes another evil practice of the common law which denied the prisoner the assistance of counsel. This denial was based upon the idea that the judge should be counsel for the prisoner � an idea which in practice was a cruel mockery.⁴

³ 4 Blackstone's Commentaries, 359, 360: 2 Hale's Pleas of the Crown, 283; 1 Tucker's Blackstone, Appen., 304, 305; Rawle on the Constitution, 129, 130; Story on the Constitution, 1785-86.

⁴ Story on the Constitution, sec. 1787; Blackstone's Commentaries, 355, 356; 1 Tucker's Blackstone, Appen., 305; Rawle on the Constitution, supra. See Anderson's Case, 172 U. S. � , not yet reported.

It must be confessed that these provisions are rather declarations of rights than well-established securities of liberty. They require to be supplemented by legislative provisions, and by the enlightened administration of justice by an independent judiciary, or sustained by a sound and liberty-loving public sentiment of the people of the country. Milligan's Case¹ was one in which these fifth and sixth amendments were set at naught by the legislature and the President, and in which the right of the accused to an accusation by a grand jury and to a trial by an impartial jury of the State and district was upheld by a bare majority of the Supreme Court of the United States.

Mrs. Surratt was unconstitutionally tried by a court-martial against the imperative requirement of these two amendments and hung in sight of the capitol upon a judgment of a court-martial and in defiance of her petition for a habeas corpus which the military power resisted. Cases under this sixth amendment are referred to in the note.²

In Twitchell v. Commonwealth³ the Supreme Court decided that these two amendments had no application to the States, but only to the Federal government. In Miller v. United States⁴ it was held that the confiscation acts were not in conflict with the fifth and sixth amendments. The case of United States v. Cruikshank⁵ discusses the provision as to being informed of the nature and cause of the accusation.

In the case of Callan v. Wilson⁶ the provision that the trial of all crimes should be by jury was held to mean not only felonies, but misdemeanors involving the deprivation of liberty, and that these provisions are in force in the District of Columbia.

² Twitchell v. Commonwealth. 7 Wall. 321; Miller v. United States, 11 id. 268; United States v. Cruikshank, 92 U. S. 542; Stanley v. Su-

In the case of Mattox v. United States, supra, the court held that all these provisions of the amendments are to be interpreted in the light of the law as it existed at the time it was adopted, and as securing to every individual such rights as he possessed previously as a British subject, and as his ancestors had inherited from the days of Magna Carta.

The case of In re Ross¹ was a singular decision � that an American citizen in a foreign land may be tried by a consular court situated in the foreign country, established under an act of Congress, and that such citizen may be condemned to death by such court without accusation by indictment of a grand jury, or trial by an impartial jury of the country. The doctrine held by the court was that the Constitution had no operation outside of the United States. It would seem to follow logically that Congress, which derives all of its powers through the Constitution, could not pass a law which would have any operation outside of the United States any more than the Constitution does, and therefore that such law providing for the trial, if a violation of the Constitution, is null and void. The author may therefore suggest the query as to the soundness of this decision.

§ 334. The seventh amendment is in these words: "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 reexamined in any court of the United States, than according to the rules of the common law."

In the original Constitution (art. III, sec. 2, clause 2) it is provided: "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." It appears from the Federalist² that great clamor was

made against this provision, lest the appellate power of the Supreme Court would set aside the decision on a question of fact by a jury; and in the same book,¹ the apprehension, which was strongly expressed by the opponents of the Constitution, that there was no security in that instrument for the trial by jury of civil cases, though there was as to criminal cases, was met by a very able discussion of the objection. We have seen that these objections to the original Constitution were the occasion of the first ten amendments. It will be seen how this seventh amendment meets this objection which had been made to the original Constitution as to jury trial in civil cases. The clause in reference to the Supreme Court had recognized cases in law and equity as within the judicial power. This obviously referred to the distinctive jurisdiction of the common-law courts and the equity courts existing in England, and which all the thirteen States had adopted as a part of their own system. As the equity system did not recognize jury trial as a part of its machinery, the revision on appeal by the Supreme Court as to law and fact was really the exercise by the appellate jurisdiction, in respect to equity causes, of the power of granting new trials and the like in causes at common law. But this seventh amendment put an end to all criticism upon this point. It provides that in suits at common law (obviously excluding suits in equity), where the value in controversy shall exceed $20, excluding cases below that sum, which might be tried by a civil magistrate, the right of trial by jury shall be preserved. This met the objection that civil juries were not secured as a part of the judicial system of the United States. The amendment goes further, and provides that no fact tried by a jury shall be otherwise re-examined in any court of the United States, supreme or inferior, except according to the rules of the common law; that is, that a verdict may be set aside and a new trial granted, and the practice of the common-law courts as existing prior to the Consti-

tution should not be set aside by this amendment. This amendment, therefore, clearly allows trials in equity causes without jury, and suits at common law with jury, re-examinable according to the rules of the common law, but not otherwise.

The foregoing question arose in the Supreme Court in the case of Elmore v. Grymes,¹ where a peremptory nonsuit against the will of the plaintiff had been ordered in a circuit court. The appellate court reversed the judgment, holding that the plaintiff had a right to have his case submitted to the jury.

In Parsons v. Bedford² the same doctrine was applied to a judgment in the Louisiana district court, which was rendered according to a civil-law proceeding, and held to be within the meaning of the terms of this amendment "suits at common law," and it was held that the Supreme Court could not reexamine the facts if tried by a jury in the Louisiana district court by the civil-law proceeding.

In Castle v. Bullard³ these cases were approved; and so in McElrath v. United States⁴ it was held that a suit against the government could be tried in the court of claims without the intervention of a jury. Such suits are not suits at common law within the meaning of the amendment.

In Baylis v. Insurance Co.⁵ it was held that without a waiver of right of trial by jury a court cannot substitute itself for a jury, pass upon the effect of the evidence and render judgment thereon. This would violate the seventh amendment, which the court has always "guarded with jealousy."⁶

The decision of the court in the above case was distinguished from that of Randall v. B. & O. R. R. Co., in which the court said if the court had directed a verdict for the defendant on the ground that the evidence with all the in-

ferences that the jury could justifiably draw from it was insufficient to support a verdict for the plaintiff, so that such a verdict if returned must be set aside, it would have followed a practice sanctioned by repeated decisions of the court. That would have allowed trial by jury, subject only to be re-examined according to the rules of common law.

The question of how far this amendment will allow a judge to express an opinion on the facts to the jury, or direct a verdict according to his opinion, has already been considered by the Supreme Court in several cases, the last of which was the case of Allis v. United States,¹ in which the court held that the judge may express his opinion as to the weight of the evidence, and may recall the jury after deliberation for a time to ascertain their difficulties, and to make proper efforts to assist them in their conclusions. That was a criminal case. The same doctrine was strongly asserted in Simmons v. United States,² where the court (citing Vicksburg, etc. R. R. Co. v. Putnam,³ United States v. Railroad Co.⁴ and Lovejoy v. United States⁵) says: "It is so well settled, by a long series of decisions of this court, that the judge presiding at a trial, civil or criminal, in any court of the United States, is authorized, whenever he thinks it will assist the jury in arriving at a just conclusion, to express to them his opinion upon the questions of fact which he submits to their determination," etc.

In Sparf and Hansen v. United States⁶ it was held that in the courts of the United States the jury in criminal cases are bound to receive the law from the court, and apply it as given by the court, subject to the condition that by a general verdict the court may determine both law and fact upon the issue submitted to them; and while the court may instruct as to the legal presumptions from a given state of

facts, it must not by peremptory instructions require the jury to find the accused guilty of any offense. In Allison v. United States¹ the court charged the jury as to the weight to be attributed to the evidence of the accused in his own behalf, and the decision was reversed because of it, citing Hicks v. United States.² It may be open to serious question whether the latitude allowed to the court in some of the above cases in instructing the jury on the weight of evidence actually given will not lead to great injustice, such as was rectified in the case last cited, but which may be beyond rectification in some cases, and thus the right of trial by jury be destroyed under the strong and dominating instructions of the court.

§ 335. The next amendment is in these words: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

This amendment was derived from the Bill of Rights of 1689, which reads, "Excessive bail ought not to be required, or excessive fines imposed, nor cruel and unusual punishments inflicted."³ The explanation of the provision as to excessive bail is found in a previous clause of the Bill of Rights. The purpose of this is obvious. If bail disproportioned to the means of the accused be required, it will result that he will be imprisoned for lack of means, while another's ability to furnish it may avail to release such other person. The rich may go free, the poor must be imprisoned. So on judgment of fine and imprisonment until the fine is paid, the

lack of means of the convict to pay the fine might result in his imprisonment, when the man of wealth would avoid imprisonment by the payment of a fine. This, therefore, applies not only to the legislative but to the judicial depart-

ment. The discretion of neither should be so used as to demand excessive bail or to inflict excessive fines. In Pervear v. Commonwealth¹ this amendment was held to apply only to the Federal government.

The question has come up to the Supreme Court from State courts in reference to electrocution, as to whether it was not cruel and unusual punishment. The court again decided that this and the kindred amendments were limitations upon Federal power, and not upon State power.²

§ 336. The ninth amendment is in these words: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

It has been already observed that one of the most serious objections urged against the original Constitution was that it did not contain a bill of rights. Mr. Hamilton, in the Federalist,³ argued with great force that a bill of rights in the Federal Constitution was really out of place, because this Constitution was one to create a government with limited and enumerated powers; that a bill of rights was proper in respect of a government which had unlimited power over the rights of the people under its control; but why should there be a bill of rights in a Constitution where the power was so limited by enumeration as that the power of the government could not touch such rights? He says: "But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to one which has the regulation of every species of personal and private concerns." He further urged that these were dangerous as well as unnecessary. "They

would contain various exceptions to powers not granted; and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed. I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge, with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government."

There were, as we have seen, certain limitations upon the powers of the Federal government in respect to ex post facto laws and bills of attainder, to which we have referred already. The inhibition of these certainly furnished an argument that these powers might be implied for Congress had they not been inhibited. In order to exclude any such inference this amendment was adopted, and, in the language of Judge Cooley,¹ "However unfounded such a fear might be, there could be no harm in affirming by this amendment the principle that constitutions are not made to create rights in the people, but in recognition of, and in order to preserve them, and that if any are specially enumerated and specially guarded, it is only because they are peculiarly important or peculiarly exposed to invasion."

This amendment, therefore, was meant to exclude the inference that the Federal government could touch any of the great fundamental rights of the people, because there was no special inhibition of power to the Federal government to

invade them. The fact that some are guarded against the power of the government is therefore not to be the basis of an argument that others not so guarded may be invaded by its power. The maxim Expressio unius exclusio est alterius, therefore, does not apply to the rights of the people in reference to the powers of the government of the United States. The language of Judge Story in accordance with these views may be quoted. He says:¹ "This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and e converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies. The amendment was undoubtedly suggested by the reasoning of the Federalist on the subject of a general bill of rights."²

§ 337. The amendment is in these words: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

So much has been said as to this clause that but little need be said now. In the Articles of Confederation it was declared that each State retained its sovereignty, freedom and independence and every power, jurisdiction and right which was not by this confederation expressly delegated to the United States in Congress assembled. It is said that in Congress, when this amendment was proposed, the insertion of the word "expressly" before the word "delegated" was proposed as an amendment, and so in the Virginia conven-

tion. But the argument that it is impossible to confine a government to the exercise of express powers, and that there must be powers necessarily implied, was sufficient to reject the amendment. And. as we have seen, the adjudications of the courts have uniformly followed this strong language of Judge Story in Fairfax v. Hunter,¹ "The government, then, of the United States can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication." See also Gibbons v. Ogden,² McCulloch v. Maryland,³ and cases cited ante. These decisions justify this analysis of this important amendment:

First. The Federal government has no powers but those delegated by the Constitution. It has no inherent powers, but only those derived from the Constitution as expressly delegated or granted by necessary implication.

Reservation of powers is the basis of the title of the States or of the people of the States to political powers under the Constitution. They are not secured to the States or to the

people by virtue of the Constitution: they are inherent in the people of the States, and unless delegated to the United States, or by their constitutional act prohibited to themselves, they remain with the States respectively and the people. The word "reserved" in the Constitution is synonymous with the word "retained" in the Confederation. This amendment, therefore, differentiates the powers of the

United States and the powers of the States. The former are derived by the United States through delegation from the States. The latter, the reserved powers, remain in and are retained by the States, because not delegated or prohibited.

require a word of explanation. At the time of the adoption of the Constitution in 1789 the States were bound by the Articles of Confederation. The several Constitutions had by express grant of the people of the States as separate Bodies-politic vested in the State governments a number of powers, while others not granted to the Congress of the Confederation, or granted to the State governments, were retained by each State. By the Constitution of the United States a number of the powers, e. g., regulation of commerce, laying of duties, imposts, etc., which were under their several Constitutions vested in the State governments, were taken from the State governments and delegated to the United States by the Constitution of 1789. The States intended that all the powers vested by their several Constitutions in the State government should be retained and exercised by that government, except such as by the Constitution vested exclusively in the United States or by contractual agreement were prohibited to the States. The consequence is that it is not only natural, but necessary, that this amendment should declare that the powers not delegated to the United States, and not prohibited to the States, should still remain with the several State governments or with the sovereign people of each State. But, e converso, they divested the State governments of the powers given them by the respective State Constitutions, in so far as by the Constitution of 1789 those powers were exclusively delegated to the United States. Cases containing these views might be cited without number.¹

In the case of United States v. Cruikshank,² Chief Justice Waite uses this emphatic language: "The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people."

gress, and the express limitations upon those powers in the original Constitution and in the first ten amendments, all of which, by a series of decisions already cited, apply exclusively to the Federal government, and in no case to the government of the States.¹

¹ Barron v. Baltimore, 7 Pet 244; Smith v. Maryland, 18 How. 71; Purvear v. Commonwealth, 5 Wall. 475; Twitchell v. Commonwealth,

7 id. 321; The Justices v. Murray, 9 id. 274; Edwards v. Elliott, 21 id. 532; Walker v. Sauvinet, 92 U. S. 90.

§ 338. In the orderly arrangement of the Constitution we have already seen that the first article applies to the Legislative Department, and the powers delegated to it by the Constitution. This second article applies to the Executive Department, and the powers delegated to the President as the officer in whom the executive power shall be vested. The first article is prefaced with the language, "All legislative powers herein granted shall be vested in a Congress of the United States." The second article is prefaced by the declaration, "The executive power shall be vested in a President of the United States of America."

We will now take up this article, clause by clause, and attempt to expound its meaning. We have already referred to the general purpose of the convention to conform the organism of the Federal government to the familiar canon of Baron Montesquieu, requiring the complete separation of the three departments as an essential security to the liberties of the people. It has also been seen that in the framing of the portions of the Constitution relating to the Legislative Department, it was intended to grant to the Congress of the United States legislative powers alone. It will now be seen on the threshold of the article in respect to the Executive Department that "the executive power shall be vested in a President of the United States of America." Whatever might be considered the powers thereafter granted to the President in any other Constitution or system of government, or however the powers granted in the first article to Congress, or in the third article to the Judicial Department, might be considered under any other system of government than our own, it is obvious that the Con-

stitution intended to vest in the President of the United States the executive power, and none other; and that the powers enumerated in the second article are to be regarded as in the minds of the framers of the Constitution as executive powers, and all others enumerated in the other articles as not executive powers. It has been said that the power to declare war is an executive power, because it is vested in the King of England, who is the executive of that kingdom; but it is certainly not true under the Constitution of the United States that the power to declare war is an executive power, and it is certainly true that it is only a legislative power. This first sentence, therefore, in this article is the key to the whole article.

Again, we think it is clear that the incidental powers which may be necessary and proper to carry into effect the powers vested in the Executive Department by the Constitution are legislative powers, and not executive, because the seventeenth clause of the eighth section of the first article gives to Congress the power � the legislative power � to supply the means necessary and proper for carrying into execution the powers vested in the Executive Department. It would seem indeed that while the express powers vested in the President are not in any degree within the control of the legislative power, yet where an executive power needs co-efficient means for carrying it into execution, those means are not executive powers at all, but are to be supplied by the legislative powers of Congress.

It is provided in section 1, clause 1, of article II, that the President shall hold his office during a term of four years. The office of President is, therefore, a constitutional office. He is by the Constitution an officer of the United States as well as the President. In this respect the President and Vice-President differ from senators and representatives in Congress. The latter, as we have seen, are not officers of the United States at all; they are senators and representatives of the respective States. The two officers mentioned hold their offices during a term of four years. This does not mean that

they shall hold the office or exercise its duties for a period of four years, but the term of office shall be four years; and, therefore, General Washington entered upon the duties and

the execution of his office on the 30th of April, 1789; but his second term of office began on the 4th of March, 1793, and not on the 30th of April, 1793.

§ 339. The manner of electing the President and Vice-President is thus prescribed.¹ As we have seen, the President is to be elected primarily by electors. He is not elected by a direct vote of the suffragans of the States. He is elected by the votes of electors, who may be chosen or appointed by the suffragans of the States or otherwise.

Let us see how this is provided for. The electors are to vote for the President, but who are to appoint the electors? "Each State shall appoint." The power of appointment is in the individual State. If it is asked what is the meaning of the word "State," the question is easily answered. It means the State � the Body-politic, as distinct from the government and the departments thereof, because these words are followed by this clause, "in such manner as the legislature thereof" (that is, the legislature of the State) "may direct." The legislative organization is the instrument through which the State as a Body-politic acts in the appointment of electors.

Shall appoint whom? "A number of electors." How many? "Equal to the whole number of senators and representatives to which the State may be entitled in the Congress." A State thus appoints electors equal to the number of senators and representatives that the same State is entitled to in Congress. This sentence makes the States the source, as we have seen, of all legislative and all executive power in the government of the United States. Let it be noted that the basic principle of compromise of the related powers of the States as co-efficient Bodies-politic and as Bodies-politic according to their numbers, which settled the constitution of the Senate and the House of Representatives

as branches of the Congress, by giving equality of representation to the States in the Senate and representation according to numerical strength in the House, was carried out in the constitution of the Executive Department by combining in one the dual elements of statehood represented in the two Houses, and making each State potential in the election of the executive by combining its powers as an independent State, and its powers according to numbers.

The clause proceeds, "But no senator or representative, or person holding an office of trust or profit under the United States shall be appointed an elector."^l This clause is suggestive of what is just above stated, that neither a senator nor representative is a person holding an office of trust or profit under the United States; such hold under the State represented by them, not under the United States. This excludes all members of Congress from having anything to do with the election of President. It makes the President entirely independent of Congress and of its members, and divorces these from any part in the election of the executive. It also excludes all persons in the pay of or in subordination to the United States government from taking part in the election, which is intended to be free from all such influences, and to be controlled only by the free voice of electors appointed by the States in the manner prescribed.

§ 340. What is the significance of "in such manner as the legislature thereof may direct?" If the legislature chooses, may it not direct the appointment to be made by popular vote, or by the legislature, or by one branch of the legislature, or by the Governor? Is there any restriction upon the State or its legislature as to the manner in which the State shall appoint these electors? It would seem not. Until the year 1860, the legislature of South Carolina directed the election of its electors by the legislature itself; and it is further to be noted that the manner of appointment so directed is nowhere to be altered or established by any other instrumentality, as was provided in the case of the

time, place and manner of holding elections for senators and representatives.¹ A State may therefore appoint electors or refuse to appoint, and in any manner that it may direct by its legislature, nor is there power which can control or nullify its action.

§ 341. In a former part of this work the nature of the executive functions and of the organization of the Executive Department has been discussed in connection with the consideration of the subject of government. It will therefore not be necessary to say anything upon that subject here. It is only necessary to say that the Executive Department was established without any advisory council or other limitation upon the power of the President; but it is obvious that the vesting of the executive functions in one man without limitation upon his personal will, determined in secret, without debate or public discussion, and with no appeal, was a perilous investiture of power, which naturally made the framers of the Constitution careful about the limitations upon it. The debates in the Constitutional Convention have been reported by Mr. Madison, and may be referred to as instructive upon the purposes of the framers of the Constitution.²

Whether the executive should be singular or plural was first debated. The argument in favor of its unity was that it secured energy and responsibility; energy by reason of singleness of determination, and responsibility of the one, which would be divided if the executive be plural. The plan of a single executive was adopted by a vote of seven States to three.³ The question arose whether there should be a council attached to the Executive Department. It was argued that even the royal executive of Great Britain had a cabinet to advise him. Mr. Randolph, in his eighth resolution, had proposed that the executive and a convenient number of the national judiciary should compose a council of revision.⁴

The use of the judiciary for any such purpose was strongly reprobated by Messrs. Gerry and King, largely on the ground that the judiciary, by reason of their judicial functions, could set aside laws because at variance with the Constitution, and should not therefore take part in their original enactment. This proposition was therefore postponed, by a vote of six States to four,¹ to take up a proposition giving the veto power to the executive.

The mode of the election of the executive was the subject upon which the convention seemed to have been very much at sea, Wilson, of Pennsylvania, suggested an election by the people at large. Sherman was for appointment by the legislature.² Randolph's seventh resolution provided for an election by the National Legislature. The term of the office was fixed by a vote of five States to four, and one divided, at seven years.³ The term of seven years was adopted with a view to ineligibility thereafter, as against a term of three years with re-eligibility. Wilson then proposed that the executive be elected by the qualified voters, who should elect the executive by ballot. This was rejected by a vote of two States to eight, and the election by the National Legislature for a term of seven years was agreed to by a vote of eight States to two. It was then agreed to make the executive ineligible after seven years by a vote of seven States to two, one State divided.

The question of the power of the executive negative then came up. Ten States voted against the absolute negative, and against the suspending negative ten States. The executive negative qualified by the power of each branch of the legislature to overrule it passed sub silentio.⁵ Mr. Hamilton thought the British model of the executive the best; that the executive, if elected for life, would be elected by the people, and this would therefore be consistent with republican principles.⁶ The Committee of Detail, to whom the various

propositions were referred, reported in favor of a single executive to be elected by the legislature for a term of seven years, but to be ineligible to re-election, and of conferring on the executive a qualified veto, subject to be overruled by two-thirds of both Houses.¹ The committee adopted the single executive nem. con.² The proposition to elect by joint ballot instead of by the ballot of each House passed by a vote of seven States to four. A motion to amend by electing by the people instead of by the legislature was defeated by a vote of two States to nine.³ At this late period of the convention, August 24, Gouverneur Morris strongly opposed the election of the executive by the legislature. So strong were his views against this mode of election that a proposition that the President should be chosen by electors to be selected by the people of the several States failed by a divided vote.⁴ But the seed had been sown and bore fruit in the report of the Committee of Eleven on the 4th day of September, in which it was provided that in case of failure to elect by the electors, the Senate, from the five highest on the list, was to choose the President by ballot.⁵ In the discussion of this question great opposition to the eventual election of the President by the Senate was manifested. Mr. Williamson suggested that the eventual choice should be made by the legislature, voting by States, and not per capita. Sherman suggested and moved that the House of Representatives should have the eventual selection, and not the Senate. This proposition, backed by Mason, was adopted by a vote of ten States to one.⁶ This history of the struggles in the Constitutional Convention over the selection and term of the executive is interesting as showing how, in the face of great divergence of opinion, the clause was finally adopted.

During the debates strong opposition was manifested to any monarchical taint in the organization of the Executive Department. The term finally adopted of four years, with

re-eligibility, was a substitute for the longer term of seven years with ineligibility. The executive unity which secured energy tending toward autocracy was balanced in the minds of the members of the convention against the short term for the executive and his personal responsibility, which could not be evaded. But great distrust was manifested at clothing the executive with large and dangerous powers; and it will be seen in the examination of future clauses relating to this subject that the powers of the executive are well defined as to extent, and limited in a large degree by their depending upon the co-efficient authority of the legislature for their efficacy.

§ 312. The electors appointed in each State in the manner prescribed by its legislature are to sit in their respective States, and not to meet in one body with electors from other States. This select body in each State (separate and apart from all other like bodies) is intended to voice the independent will of each State.² In the lack of quick communication between the different States in the Union, this plan offered a strong hope of independent action by the several States. It is obvious that in our day this expectation would be disappointed by the easy communication between the States, and this disappointment has been increased by the party conventions of the different organizations, whose choice of party candidates, dictated to the electoral college, defeats the whole plan as contemplated by the Constitution. Of this, more will be said hereafter.

The clause proceeds to declare that the meeting of electors in each State (which may be aptly called a college of electors) shall "vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each." This clearly implies that an elector shall vote for any two persons he shall choose, independent of the choice of other electors. It was

contemplated that by this security of personal independence inter se, even in each college, a free vote would be obtained from each elector for the man he deemed best fitted for the Presidency.

But suppose the elector voted for two inhabitants of the same State with himself. It would seem the vote would be void, under this clause of the original Constitution, for either might be President. But that result would, perhaps, not now obtain under the twelfth amendment, for the vote is to be for one as President and the other as Vice-President. But the point is in doubt. The clause proceeds: "which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate." This transmission of the certified action of the college to the President of the Senate, at the seat of government, is important if not essential.

The modus operandi, under the original clause of the Constitution up to this point, has been changed by the twelfth amendment, which was adopted in 1802. That amendment provides: "The Electors shall meet in their respective States, and vote 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 certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate."

The historic cause for this change was the dangerous condition of things resulting from the election in 1800. Thomas Jefferson and Aaron Burr were voted for by the same political party and had equal votes. Neither, under the then Constitution, being designated as President or Vice-President, the original Constitution declared that when two persons had an equal vote, and each had a majority over all

In this case the House of Representatives could not elect either Jefferson or Burr. For a long time it was felt that there would be a failure to elect, and thus an interregnum occur which might destroy the Union. After some weeks, however, Mr. Jefferson was elected and Burr became Vice-President.

The thoughtful statesmen of that period, in view of the danger in the future from a like contingency, determined to propose the twelfth amendment, which was adopted. As already quoted, each college of electors was to meet and vote for one person as President and another person as Vice-President. In this explanation we must consider the clause in the

original Constitution: "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.'' This clause is thus precisely copied in the twelfth amendment already referred to, and in our later history became a clause of grave and momentous consequence.

§ 343. In the Presidential election of 1876 Mr. Hayes and Mr. Tilden were the candidates for the Presidency. Contests arose in several States between the Hayes and Tilden electors, and the question was critical as to which set in each of them was entitled to be counted. The Senate was composed of a large majority of members favorable to Mr. Hayes, the House of Representatives of those favorable to Mr. Tilden.

There were rival sets of certificates from several of the colleges. They were transmitted to the President of the Senate, who was favorable to Mr. Hayes. The Constitution directed, as above indicated, that "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 question arose, what was the function of opening the certificates in the presence of the House of Representatives, and who shall then count the votes? On the one part it was contended that the President of the Senate was to open the

certificates and count the votes and thus decide the contest. On the other hand, it was insisted with conclusive force that the presence of the two Houses made them controlling supervisors of the acts of the President of the Senate, which was simply ministerial, and that the counting of the votes was to be the act, not of the President of the Senate, but to be the concurrent act of the two Houses, as guardians of the count and as deciders of the result. This view was not only the clear meaning of the wording of the clause, but gained conclusive confirmation from the historic action of the two Houses, upon which the twelfth amendment had placed its sanction by the adoption of the precise words of the original article, which had been three times acted upon by the two Houses in accordance with this view. In none of the previous cases in 1793, 1797 or 1800 had the President of the Senate exercised any but the ministerial function of opening the certificates and laying them before the two Houses. Each House had appointed its one teller (or counter) to count the votes for it, and the result thus ascertained was reported by the tellers concurrently to the President of the Senate, who simply announced the result to the two Houses which had thus been obtained by and through their respective tellers. These precedents were regarded as interpretations of the constitutional language in the original Constitution; and as that language was precisely re-adopted in the twelfth amendment, the precedents were held to be an authentic construction of the language used in the original, and by the Constitution-makers (the States) in ratifying the amendment.

It is perhaps as well to add that the crucial question was this: The two Houses were intended to count the vote and decide upon the count; but when they differ, who shall umpire the difference and decide the count? In this case in 1876, the two Houses would, it was anticipated, widely differ in their conclusions. To meet this imminent difficulty, Congress passed "The Electoral Commission Bill," under which the disputed certificates were considered and decided upon by the Electoral Commission, subject to be set aside by the

concurrent vote of the two Houses. Such a concurrent vote was never obtained in any case, so that the decisions of the tribunal upon the disputed certificates were always unreversed. The result was that all of the disputes were decided by a vote of eight to seven in favor of Hayes and he was declared elected.

The constitutionality of the act thus passed by Congress was doubted by many able men, but it settled without convulsion, though not without strong dissent from its conclusions, a controversy which threatened the peace of the country and the integrity of the Union. A later act of Congress has been passed by which such contests may be decided without the intervention of any other tribunals than the concurrent act of the two Houses. One constitutional question may be deemed settled by the act creating the Electoral Commission and the late act just referred to, and that is that the claim of power asserted for the President of the Senate, to which reference has already been made, is without any foundation, and that the authority to count and to decide upon the count is vested by the Constitution in the two Houses of Congress.¹

§ 344. What number of electoral votes is requisite to the election of a President? Under the original Constitution we have seen that no person was designated as President or Vice-President. Two persons are voted for, and "the person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed." The Constitution did not intend that any one should be President who could not command a majority

¹ The writer refers the reader on this historic subject to the debates in both Houses of Congress in the session of 1876-77; the report of the proceedings of the Electoral Commission, Congressional Record of the 44th Congress, Second Session, volume 5, pt. 4; the speech of Senator Conkling on the Electoral Com-

mission Bill, and to the speech of the author on January 23, 1877, in the House of Representatives, in which will be found a full collation of the precedents, etc., connected with this question, and also the act of Congress. See also House Misc. Docs., No. 13, 2d Sess. 44th Cong., on counting the electoral votes.

of all of the electors appointed, because if a plurality of votes, merely, would make a President, this might be but a small proportion of the whole vote. If two have a majority of all, and have equal votes, the House of Representatives must choose between them, as was done in 1800, when Mr. Jefferson was elected. And now the clause goes on: "and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President."

How shall the House of Representatives elect? The clause provides for this: "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 of the States shall be necessary to a choice." In the contingency of non-election of the President by the colleges, this election by the House of Representatives has several peculiarities. (a) States shall vote, the representation from each State having one and only one vote. (b) A quorum to elect must have two-thirds of the States represented by one or more members. (c) Of this quorum a majority of all the States is needful for a choice.

In reference to the Vice-President this provision is made: "In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President." It will be seen by this that the Vice-President may be elected when he has the next highest vote to him who is chosen President, although they may not be a majority of all of the electors appointed. This provision caused John Adams to be elected the first Vice-President by a minority of electoral votes. It will be further seen that where there are two who have the next highest vote, but equal votes, then the Senate shall choose the Vice-President from them by ballot.

The twelfth amendment of the Constitution changed in many respects the provisions already referred to in the original Constitution. After providing, as already stated, for a separate vote by the electors for President and Vice-President, and for transmitting and opening these certificates of these votes, and then counting the votes, and that the person having a majority of all of the electors appointed shall be President, the amendment further provides: "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." And then follows the same provision as in the original: "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 necessary to a choice." An important provision follows to meet the contingency which had been threatened in the election of 1800, when the House of Representatives failed to choose a President. It is in these words: "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 President, as in the case of the death or other constitutional disability of the President." A change is then made in the election of a Vice-President, among those voted for, to fill that office, when the votes are equal or when no one candidate has a majority of the whole number of electors appointed. The provision is as follows: "The person having the greatest 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 number of senators, and a majority of the whole num-

ber shall be necessary to a choice." This provision prevents any man from being Vice-President by the vote of the electoral colleges unless he has a majority of all of the electoral vote. Some remarks may be added on this extraordinary method of election: First. The primary plan for election is by the electors of the several States, appointed as each by its legislature may prescribe, each State having an electoral force determined on the basis of its co-equality as to statehood and the numbers of its population. Second. A majority of electoral votes, not a plurality, is required to elect; this prevents a minority President as far as the colleges are concerned. Third. If the colleges cannot make this majority, then from the three highest candidates (in the original Constitution it was five) the House of Representatives must choose the President by the representation of each State casting one vote only for the State, and a majority of all of the States may elect the President regardless of their respective numbers. Such a President is chosen by a majority of States, which may contain a decided minority of numbers. Fourth. If the colleges choose no Vice-President, then from the two highest candidates the Senate must choose a Vice-President, who must be the choice of the majority of the body, i. e., of the senators of co-equal States, but this majority of States in the Senate may contain a decided minority of members. The last clause of the twelfth amendment makes eligibility to the offices of President and Vice-President precisely the same.

It is obvious from this review of the clause that the Constitution contemplated the selection of a person for the Presidency who should combine a majority of all the electoral representatives of the States meeting, deliberating and choosing, by their separate, distinct and independent action. The value of the selection was expected to be assured by this independence of State action, and this was supposed to be the better assured by a later clause which provides that the date of voting by the electors was to be the same though both acted separately. This secured more distinctly the

The change which circumstances have wrought in a century is certainly very marked. In effect the two or more great parties of the country, in general convention, decide upon the personality of the President and Vice-President, and the electoral colleges chosen as the representatives of these parties register the choice of the extra-constitutional conventions of these political parties. These conventions are composed of representatives in number corresponding to the numbers in the electoral college; but while analogous to the constitutional plan, in this it reversed all likeness by the union of all the representatives of the State in one body, and by counting Territories as well as States in the representation in the convention. Besides this, members of Congress and office-holders fill these conventions when no one of them could be constitutionally an elector. No wonder the choice now falls so often upon some unheard-of man, and docs not always come to one of our most illustrious citizens, the

cynosure of all eyes in every section of the Union. No wonder that one may be selected whose merits are only known to party managers.

When we read the words of Hamilton^l and study the events of this later era we cannot esteem him a prophet, and yet can see his prophecy of the radical change of the constitutional method of election by the extra-constitutional methods of the political parties of the Union. He says: "This process of election affords a moral certainty that the office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue and little arts of popularity may alone suffice to elevate a man to the first honors of a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable portion of it as would be neces-

sary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue."

§ 345. It is very obvious that the practical operation of this scheme of election of the President is directly opposed to what was contemplated by the framers of the Constitution. Mr. Bryce has well said:¹ "In every American election there are two acts of choice, two periods of contest. The first is the selection of the candidate from within the party by the party; the other is the struggle between the parties for the place." This remark applies to all grades of political offices in the country.

The Constitution designed that a body of select men should choose a person that they esteemed fit for the Presidency. But a party convention of representatives from every State and Territory has done that for them, and public opinion compels them to obey its nomination. The electors were intended to nominate. In practice they merely confirm the nomination of an ultra-constitutional body, composed of material different from the electoral college of the Constitution. Second, the Constitution intended that not only the personal but the political principles of the President should be determined by the separate and independent judgment of the State college of electors, and the convention voted down a proposal that they should hold a general meeting and a union of the electors from all of the States.

The ultra-constitutional method in practice with the parties subordinates the separate colleges to the dictation of the party conventions, not only as to the personnel, but the political principles of the candidates. Third, it has come to pass that this ultra-constitutional body is made up of senators and representatives, of office-holders and office-seekers, whose great object is party success, from which they hope

to realize the rewards in honors, emoluments and the spoils of victory which are foreshadowed by platforms providing for the collection and disbursement of enormous revenues. Fourth, this desideratum is only to be realized by dictating the unified sentiment of the party convention, in preference to their distinct duties, not only to the colleges of electors, but to all the senators and representatives of the States; thus centralizing the action of the government of the Union through the body which specially relates to the Presidential office, and subordinates all State and district action to its dominating influence. Fifth, the solidity of the vote in the large States in these party conventions, and through the electoral college in the election of President, is giving to the large States a potential influence in deciding the canvass and election of the President, which is unjust to the smaller States, enhancing the pretensions of public men in the large States, makes such men in the small States practically ineligible, and threatens to place a dominating force in the hands of a few large States who may by combination, dangerous to the Union and fatal to the liberties of the people, put the government in the hands of an oligarchy instead of the whole people of the country. If the present system is to be retained, it ought, at least, to be so amended as to divide the power of the large States, by making districts for the Presidential electors. This will break up the solidity of power of the large States; give representation to the minority in each, now easily captured for the election of one who can command a bare majority in a million of votes; will make money less potential, and the temptation to use it less strong; and will decentralize power by multiplying the nuclei of public opinion throughout the whole country.

These suggestions of dangers and their causes, and of changes which may avoid them, are made without expanding them into full exposition, but in the hope of availing something to check evil tendencies and to secure the desired objects of the Constitution.

§ 346. We proceed to the next clause, which leaves to Congress to determine the time of choosing electors, which is to be done as the legislature of a State may prescribe; and the day for the electors to give their votes, which day must be the same throughout the United States. This seems to allow Congress to fix a different time in the States for choosing electors, though the day they vote must be the same. The practice is to make both the same throughout the United States. It has become universal to appoint electors by the vote of the suffragans in the States, which amounts now to nearly fifteen millions.

§ 347. The next clause relates to eligibility to the office of President (the same rules applying to the Vice-President, as we have seen). He must either be a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution. This latter clause was intended to make eligible one who, though not a native, was a citizen at the date of the Constitution, if he had been fourteen years a resident of the United States. It made Hamilton eligible but not Gallatin. Thirty-five years of age is requisite to eligibility.

§ 348. The disability of the President, and what is to be done in case of it, is next considered, (a) The twelfth amendment provides when a President is not elected, in case the duty of election devolves on the House of Representatives, then the Vice-President shall act as President, as in the case of the death or the constitutional disability of the President. It is probable that in such case the Vice-President would take the office of President, as the Vice-President does in the other cases referred to, and not merely act as President. (b) The President may be removed from office on impeachment.¹ In case of such removal the office devolves upon the Vice-President; that is, he becomes President, and does not merely act as President, (c) In case of the death of the President, the Vice-President takes the

office. It has never been discussed how and to whom the President shall resign. Perhaps, as the Houses of Congress confirm his title, they should receive notice of his resignation, and a record be made of it in the State Department,¹ where the President deposits the acts of Congress approved by him. Congress has declared it shall be in writing, subscribed and deposited in the State Department.

In case of "inability to discharge the powers and duties of the said office," the Vice-President shall take it. In case of "inability to discharge the powers and duties of the said office," as well as in case of removal, death and resignation of the President, the office devolves upon the Vice-President. This suggests several curious inquiries, as to what is such inability, and how is it to be ascertained. And if such disability be removed, will the office be restored to the President? No answer is furnished by the express words of the Constitution. A subsequent clause provides for the inability of both President and Vice-President, by authorizing Congress to provide by law to declare what officer shall act as President, and that such officer shall act "until the disability be removed, or a President shall be elected." In this clause the word "disability" is substituted for the word "inability," because the removal of the President by death or resignation cannot be a disability capable of being removed. Hence the word "disability" must have been used as synonymous with "inability." It is probable that the power to remove for inability by impeachment may furnish a method for deciding whether "disability" exists. Can any other mode be conceived. But for insanity as an inability, for example, this method would be clearly proper. Would judgment in such case be for permanent removal, if the insanity ceased? How would its cessation be determined?

It is obvious, unless some such judicial procedure be proper, there is no way in which the President can be ejected and

be considered. The co-efficient clause¹ authorizes Congress "to make all laws necessary and proper for carrying into execution ... all other powers vested by this Constitution in any officer" of the United States. Congress can therefore by law provide for the mode in which, in case of inability of the President, the Vice-President shall succeed to the office as President.

The "inability" might be adjudicated by a court of the United States as a case arising under the Constitution, and in such manner the President might be removed and the Vice-President succeed to the office. The latter part of this clause provides against "the removal, death, resignation or inability, both of the President and Vice-President," etc., by providing for a law by Congress declaring what officer shall act as President or Vice-President, who shall so act until the disability be removed, or a President shall be elected. Congress in 1792² provided that the President pro tem. of the Senate should act as President, and if there were none, then the Speaker of the House of Representatives should act as President. By a late law this has been changed, and it would seem on good reason. Neither the President pro tem. of the Senate nor the Speaker of the House of Representatives is an officer of the United States. We have already seen that neither a senator nor representative in Congress is such officer.³ The law of Congress could not deprive a State of either. While either acted as President, could the State elect another? If not, it would be deprived by law of its representation.

A late law of Congress provides for the Secretaries in certain order to act as President in such case. The office of President does not devolve on such officer as it does on the Vice-President, but virtute officii the Secretary "acts as President." The office is vacant, but its functions are performed by the officer designated by law. If such Secretary ceases to be such, he can no longer act as President. His holding

his office as Secretary is his title to act as President. The Constitution says that he is to so act until the disability be removed. How is it to be ascertained that the disability is removed? If it be removed, the Constitution contemplates the President's return to office. His temporary inability suspended his right to exercise his office; his restoration to ability revests his title to hold and exercise it. The language is, "until the disability be removed, or a President shall be elected." This alternative suggests that if the disability be temporary, the disabled President must be restored; if the disability be permanent, a President must be elected to fill out the term of office. All these contingencies are provided for in the power of Congress granted by the co-efficient clause above referred to. Congress has not fully exercised this important power, but may do so by a law to carry these clauses into effect.

§ 349. The compensation of the President is provided for in the next clause. He "shall at stated times receive for his services a compensation." This is very precise. Congress must by law appropriate it, not as a gift, but as compensation for services rendered. Further, this compensation shall not be increased or diminished during the period for which he shall have been elected. Not increased, lest Congress may thus seek to influence the President, or lest he may secure it as a personal favor for official actions; nor diminished, that Congress may not thus constrain the Executive by menaces. Nor shall the President, within the period for which he is elected, "receive any other emolument from the United States or any of them." This precludes all extraneous money influence upon the official action of the President but his regular compensation, fixed before his term begins, and unchangeable during his term.¹

§ 350. The oath the President must take before entering upon the execution of his office is prescribed in the last clause of this section. In article VI, section 3, the oath prescribed

for other officers requires them "to support this Constitution." The oath of the President is very specific and comprehensive: "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 Constitution of the United States." This is a very emphatic obligation on the President by positive and negative action to keep the Constitution, in all of its integrity, secure from his own violation, and against that of all others in so far as his power can do so; to preserve from his own acts; to protect from outside influence, and to defend against all invasion.

Having thus considered the mode of election of President and Vice-President, one question remains. The term of office was made four years, with an intimation that re-eligibility should attach to these offices. It was clearly so intended; and the absence of limitations makes re-eligibility the fixed principle of the Constitution. And though the first President declined a third term, and the practice has conformed to his action so as almost to have become a settled principle in the public mind, there is nothing in the Constitution nor in the debates of the convention, nor in the Federalist, to make an election of a man to more than two terms inadmissible on constitutional grounds. Mr. Hamilton, in an able paper,¹ has stated the reasons for re-eligibility with great force, to which the reader is referred.

§ 351. It has been already said, in accordance with the maxim of Baron Montesquieu, that the powers and duties of the President are executive, as contradistinguished from those which are legislative and judicial. This principle is well defined by the words of the first clause of this article: "The executive power shall be vested in a President of the United States of America." The qualified effect of this,

arising from the veto power, must, however, be noted. Let us consider these powers and duties in their order.

Article II, section 2, clause 1, is as follows: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States." This clause must be read with the clauses in the comprehensive section as to the powers of Congress.¹

Congress declares war � that is a legislative power; though the Crown declares war in England, yet the power is in its legislature, and not in its executive. Such declaration changes the relations of nations to each other; puts the individuals of each into quasi-hostile relations; forbids commerce, and interferes with the life, liberty and property of the people; dispels peace and enacts war. The Constitution gave to the legislative department the sole power to do this tremendous thing, and did not entrust it to the "one-man power" of the President. It discriminated between the law which called forth a new status for the people in their international relations and the conduct of the war. Congress might legislate war, but it is incapable of executing. The executive, with unified will powers, though alone, can well direct the movements of armies and navies. The Crown in England is generalissimo. But, as in England, the raising of armies and navies and the money for their support and maintenance are in the hands of the Congress. We have, in considering the English Constitution, pointed out the value of this power secured to the Congress. The commander-in-chief is subordinate to Congress in all respects, and he cannot use his military power to the injury of the country, except with the concurrence and consent of Congress. Besides, he is made commander-in-chief of the militia when called into actual service. How are they to be called into actual service? By the fifteenth clause of the eighth section of article I, Congress has power "to provide for calling forth the militia to execute the laws

of the Union, suppress insurrections, and repel invasions." This is a provision under which the call may be made. The act of Congress of 1795 and other acts define the cases in which the call may be made by the President. As soon as called, under the act of Congress, the President commands and directs the militia. The implication of authority to regulate and govern the army and navy which might here result from the President being commander-in-chief is negatived by the express power given to Congress "to make rules for the government and regulation of the land and naval forces."¹ The execution of these rules is for the President, but the rules have the legislative character.

The use of the army and navy and of the militia when called for the purposes named above by acts of Congress devolves upon the President in the cases specifically designated in them. It is for Congress to prescribe the purpose of the call for the militia; and while the power of the President to take care that the laws be faithfully executed might seem to give the President power to do so by the use of the army and navy, it may be doubted whether it does not require the exercise by Congress of the all-embracing coefficient power to pass a law as necessary and proper to carry into execution the executive power, to take care that the laws are faithfully executed, by the use of the army and navy. During the war of 1812 it was doubted whether the President could delegate the command of the militia to another officer.² But President Washington gave the command of the militia to Governor Lee in 1794, to put down the Pennsvlvania insurrection. The President may not, without authority of law, create a new military office and fill it in order to give the command of the militia to such officer.³

² 8 Mass. 548, � a letter from the Governor of Massachusetts to the Justices of the Supreme Judicial Court, and the answer thereto.

In the conduct of troops and command of naval vessels the President has exclusive discretion; but Congress may use the money power, as Parliament uses it in Great Britain, to control the conduct of war in a manner it condemns. But all the operations of war in an enemy's country, by levy of contributions and the like, would seem to revert to the President by virtue of his power as commander-in-chief. To illustrate, suppose war has been declared. The status of war is thus constituted. How can it be stopped when once begun? The President and Senate can make a treaty of peace, but must war continue until the President and Senate agree to the terms of peace? Is there no end to the war except at the will of the President and Senate? No authority can be cited on the question, but the writer thinks a repeal of a law requiring war would be effectual to bring about the status of peace in place of war. Besides this direct method, Congress, by the denial of supplies, as Parliament in England may do, would bring the war easily to an end, though the President might desire to continue it. As commander-in-chief he must personally approve or disapprove of the judgment of courts-martial under the articles of war which require the proceedings to be submitted to him.¹

§ 352. "He may require the opinion, in writing, of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices," etc. This is, as Mr. Hamilton says,² "mere redundancy, as it would have been inferred necessary without being expressed." It indicates clearly, however, that while the Constitution made the executive a unit, and excluded all idea of an advisory council, it still contemplated that the executive function should be divided between the executive departments with a principal officer at the head of each, who should

¹ United States v. Page, 137 U. S. 673, distinguished from Runkle v. United States, 122 id. 543.

be subordinate to the President in all things concerning his duties; and this is clearly inferable from the language used.

"He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."^l Under this clause the President may suspend, commute or abrogate penalties. He may commute the death penalty to imprisonment for life, which the convict may accept, and the latter cannot then claim that the pardon is absolute and the condition void.² The language is, "to grant pardons," which includes conditional as well as absolute pardons. The term is analogous to that recognized in the English law, and the Supreme Court has agreed that in the use of those terms our Constitution must be construed to have referred to that law. But the convict must accept the commutation. If he does not, the President could not inflict, without judgment of the court, the substituted penalty. His acceptance, therefore, is necessary to the operation of the commuted penalty.³ The President may grant a pardon before criminal procedure is instituted, and it will operate as well as if granted after a conviction.⁴

The amnesty proclamations of the Presidents since the war embraced large numbers of persons against whom there were no criminal prosecutions instituted, and these amnesty proclamations have been construed as pardons granted before and without trial or conviction. When granted before, it prevents all penalties and disabilities from attaching to the offender and restores him to all of his civil rights. If granted after conviction, it removes all of these penalties and disabilities and restores him to his civil rights. Pardon releases all penalties, including fines and confiscations,⁵ and this applies to property confiscated under judicial proceed-

restored to the offender, upon pardon, unless by judicial process the title has been vested in another person.¹ Pardon wipes out guilt and all of its consequences as if it had never been. In the eye of the law the offender is as innocent as if he had never committed the offense.² In United States v. Klein,³ disloyalty, which forbids the owner to claim captured property, is removed by pardon, and the owner is treated as if he had never been otherwise than loyal. The effect of pardon upon the offender's right to property, saving the reversion to his heirs at law, was fully considered in a number of cases besides the one last cited.⁴ These cases have been before explained. In the leading case of United States v. Klein the Supreme Court decided another important question; namely, that it is not in the power of Congress to qualify the pardoning power of the President, either in respect to the cases in which it may be exercised, or in respect to its consequences. Thus, it is not competent for Congress to say that the effect of the pardon shall not be to restore the property rights of the offender. Thus, rights are restored as the legal consequences of the exercise of the pardoning power by the executive, without any right to qualify the power on the part of the legislative department.

§ 353. "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."⁵ The negative of this clause is in article I, clause 10, "No State shall enter into any treaty," etc. The object of the Constitution, as it had been of the Articles of Confederation, was to give to the general government of the States of the Union the regulation of their relations

² Ex parte Garland, 4 Wall. 380. Accord, United States v. Padford, 9 Wall. 542.

293; Hart v. United States, 118 id. 62; Shields v. Schiff, 124 id. 851; Railroad v. Bosworth, 133 id. 92; Jenkins v. Collard, 145 id. 546; United States v. Dunnington, 146 id. 338. ⁵ Art. III, sec. 2, clause 2.

with foreign nations. And these two clauses vesting the power of making treaties in the President and Senate, and denying the power to every State, give the exclusive power of making treaties to the President and Senate. It is a striking fact that the body which represents the co-equality of the States should be the advisory and consenting body to any treaty between the States and foreign nations. The President has no power, unless the treaty be made by and with the advice and consent of the Senate.

The nature of the treaty-making power it is now proper to consider. Mr. Hamilton, speaking of this power, says: "Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society, while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all of the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive."¹

The treaty-making power in England is vested in the Crown; but this does not show that it is in its true nature an executive function. A treaty may be defined to be a ¹ Federalist, No. LXXV.

compact between nation and nation. The treaty, as a contract, is the nexus between the two distinct national wills, creating a pact between them. The subject-matter of the treaty and the objects of the contract may require legislation to complete it and to carry into execution what, by treaty, is merely executory. A treaty may be designed to establish peace instead of war. It may relate to the regulation of commerce between the inhabitants of two nations, and as to this, by operating upon individual rights, may partake largely of the legislative function. It may apply to extradition of criminals, which, operating upon the liberty of the individual, is characteristic of legislative power. This object, as all these mentioned, must be the result not of the

will of one nation alone, but of the concurrent will of two nations. The power to make the contract is given neither to the legislative nor to the executive department alone, but to a combination of the two, by entrusting it to the President and the Senate. It will be seen that the President has power to make treaties, which seems to give to him the power of negotiation and formulation of the treaty, which shall have no force as such unless it is sanctioned by the advice and consent of the Senate. The word "advice," used in the clause, indicates action by the Senate preliminary to making the treaty. The word "consent" indicates action by the

Senate subsequent to the making of the treaty by the President. It is therefore clear that the Senate may advise the

President before he has fully acted, or consent to his action after he has formulated the treaty.

The proviso is very important. We have already referred to the fact that the equality of representation of the States in the Congress of the Confederation gave undue power to the small States as to any action which depended upon a majority of their votes. In the Articles of Confederation it is provided that Congress (which has the treaty-making power) should enter into no treaties unless nine States assented to the same � nine States out of the thirteen. Two-thirds of the States, therefore, were required to make the

treaty binding. The same idea was in the minds of the members of the convention, when they required that two-thirds of the senators should advise and consent to a treaty in order to its validity. But it does not require that two-thirds of all of the senators should advise and consent to the treaty, but two-thirds of the senators present.

Why is this? Mr. Hamilton, in the Federalist, has given the reason for it in the following words: "If two-thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder."¹

§ 354. A grave question has arisen whether the exclusive power of treaty-making, vested in the President and Senate, is unlimited in its operation upon all the objects for which a treaty may provide. Can a treaty by compact with a foreign nation bind all of the departments of our own government as to matters fully confided to them; can it surrender or by agreement nullify the securities for personal liberty engrafted upon the Constitution itself; can it cede to a foreign power a State of the Union or any part of its territory without its consent; can it regulate commerce with foreign nations in spite of the power of Congress to regulate commerce with them; can it provide for the rates of duty to be imposed upon certain articles imported from foreign nations, or admit them free of duty, in the face of the power given to Congress to lay and collect taxes and duties; can a treaty appropriate money from the public treasury and withdraw it without the action of Congress; can a treaty dispose of any part of the territory of the United States, or any of their property, without the consent of Congress, which alone has power to dispose of and make rules and regulations concerning the territory and other property of the United States? These important questions have several ¹ Federalist, No. LXXV.

times arisen for discussion in our history, and upon them authoritative decisions have been made by other departments of the government, which are based upon solid reason and sound principles of constitutional construction.

It cannot be denied that very many of these questions must be answered in the negative, or the consequence would he that, under the treaty-making power, the President and Senate might absorb all the powers of the government. In favor of the extreme claim of power for the President and Senate, it has been urged that a contract between the United States and a foreign nation must be conclusive against all departments of the government, because it is a contract; but the answer to this contention is obvious and conclusive. It involves the petitio principii, by assuming that the contract is complete though it trenches upon the power of the other departments of the government, without their consent. And if it be further urged that foreign nations know no party in the contract on the part of the United States except the President and Senate, the answer is equally conclusive that if our Constitution requires the consent of the departments to a treaty of the nature referred to, the

foreign nation is bound to take notice of that fact, and cannot claim a completed obligation, in the absence of the consent of the other departments. The maxim upon this subject is familiar: qui cum alio contrabit vel est, vel debet esse, non ignarus conditionis ejus. And if it be further urged that this is too refined a doctrine to regulate our delicate relations with foreign powers, the answer is that the treaty-making power of the Crown of Great Britain, where it involves a concession of the clear and absolute power of Parliament, has never been recognized as valid by the English government, and has never been enforced. The Queen may make a treaty to pay ten millions of dollars to the French government, but unless Parliament appropriates the money the treaty will be ineffectual.¹ "It is from the fundamental laws of each State that we must learn where resides

the authority that is capable of contracting with validity in the name of a State."^l

A treaty, therefore, cannot take away essential liberties secured by the Constitution to the people. A treaty cannot bind the United States to do what their Constitution forbids them to do. We may suggest a further limitation: a treaty cannot compel any department of the government to do what the Constitution submits to its exclusive and absolute will. On these questions the true canon of construction, that the treaty-making power, in its seeming absoluteness and unconditional extent, is confronted with equally absolute and unconditioned authority vested in the judiciary. Therefore, neither must be construed as absolute and unconditioned, but each must be construed and conditioned upon the equally clear power vested in the others. For example, Congress has power to lay and collect duties; the President and Senate have power to make and contract with a foreign nation in respect to such duties. Can any other construction be given to these two apparently contradictory powers than that the general power to make treaties must yield to the specific power of Congress to lay and collect all duties; and while the treaty may propose a contract as to duties on articles coming from a foreign nation, such an executory contract cannot be valid and binding unless Congress, which has supreme authority to lay and collect duties, consents to it. If it is then asked, how are you to reconcile these two powers which appear to be antagonistic, the answer is clear. Congress has no capacity to negotiate a treaty with a foreign power. The extent of its membership makes this impracticable. The Constitution, therefore, left the House of Representatives out of all consideration in negotiating treaties. The executory contract between the United States and a foreign nation is therefore confided to the one man who can conduct the negotiations, and to a select body who can advise and consent to the treaty he has negotiated. But this executory contract must depend for its execution

upon the supreme power vested in Congress "to lay and collect duties." It is therefore a contract not completed, but inchoate, and can only be completed and binding when Congress shall by legislation consent thereto, and lay duties in accordance with the executory contract or treaty. The same reasoning may apply to all of the great powers vested in Congress, such as to "borrow money, regulate commerce, coin money, raise armies and provide a navy, make laws as to naturalization, bankruptcies, and exercise exclusive legislation" in the District of Columbia and Territories of the country. If these are sought by treaty to be regulated by the President and Senate, it can only be done when the Congress vested with these great powers shall give its unconditional consent.

Mr. Madison, in the reports of the convention which he has left to us, used an expression which is significant upon this point. He intimated that in making treaties eventual, that is, complete and final per se, the treaty-making power might be independent; but where they referred to matters that were incomplete without legislation, they would be incomplete until that consent was given.¹

The absurdity of any other construction as to the power to lay taxes, duties and so on is very palpable. We have seen from the Constitution that all bills for raising revenue shall originate in the House of Representatives, to which the

Senate may or may not assent, and the President may veto; but if the President and Senate have the power to regulate the system of taxation and revenue by treaty without the consent of Congress, then the House of Representatives, which by the terms of the Constitution is made the originating body for such bills, without whose primal action the

President and Senate can have no voice whatever in the matter, is to be excluded from any consent to the terms of the

treaty of the President and Senate, who, by the constitutional method, are not entitled to act at all until the House of Representatives has inaugurated a bill.

The reason in the nature of our system which makes the conclusion absolute is that in the balance of power which was ordained by the convention, the House of Representatives was to originate all taxation upon the people. The people at large dreaded the placing of the tax power in the hands of a majority of the States without regard to their size, and insisted that the power should be in the hands of the States according to the numerical proportion of their population. To give the President, with the advice and consent of two-thirds of the senators present, the power to regulate taxation, is to reverse this scheme and destroy the equilibrium of the Constitution. For in 1790 two-thirds of the States containing 1,685,360 people could ratify a treaty against the other third of the States containing a population of 2,166,419; that is to say, that a minority could tax at will the majority. By the census of 1880 two-thirds of the Senate, representing 19,755,532, could regulate taxation against the other third containing a population of 29,615,818; and by the late census of 1890 this disproportion would be greatly increased.

It has been shown in previous parts of this work that the regulation of commerce by a majority vote of the two Houses, instead of requiring two-thirds, was the result of a concession made upon a compromise. But if this regulation of commerce can be made by two-thirds of the States in the Senate, then under the census of 1880 above shown, two-fifths of the population of the country could regulate commerce against the other three-fifths, instead of the original purpose to require a vote of two-thirds to do so.

§ 355. These results demonstrate the fatal disturbance of the equilibrium of the Constitution which would arise from any such construction as would give the President and Senate the right by treaty with a foreign power to regulate the internal concerns of the country. We have had several historic precedents on this subject, to which brief reference may be made. President Washington negotiated Jay's treaty in 1795, in which were general stipulations as to commerce and

duties upon British vessels, etc. It was insisted that this treaty was complete without any consent of the House of Representatives. The House of Representatives resolved by a vote of 63 to 36 that while the House did not claim any agency in making treaties, yet when a treaty stipulated for regulations upon any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by Congress, and it was the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such a treaty into effect, and to determine and act thereon as in their judgment might be most conducive to the public good.¹

When the treaty of Ghent was negotiated in 1815, containing stipulations as to duties on articles imported from Great Britain, and as to commerce from that country, Mr. Madison transmitted the treaty and recommended to Congress legislation such as the treaty required, and a bill was passed in conformity therewith. The two Houses were in fierce contention upon the question we have been discussing. Calhoun of South Carolina, William Pinckney of Maryland, supported the views in favor of the treaty-making power, while Lowndes of South Carolina and Randolph of Virginia and others insisted that Congress must consent to it. In 1844 the question was again considered upon what was known as the Zollverein. treaty, when the foreign affairs committee of the Senate, through Senator Rufus Choate, their chairman, maintained the principles we have stated above.² Without going further into this question we may refer to the various views of learned writers on this subject.³

The courts in the cases cited, though holding the fact that a treaty as well as a law is held by the Constitution to be

the supreme law of the land, also hold that a subsequent law of Congress may supersede a prior treaty. That had been decided in The Cherokee Tobacco, supra, while there is an obiter dictum by the court that a treaty may supersede a prior act of Congress. Chief Justice Marshall seems, in Foster v. Neilson, supra, to accord with the remark of Mr. Madison, above referred to, as to the distinction between an eventual treaty and treaties requiring regulation. In the treaty with the Hawaiian government in 1876, the terms of the treaty required that it should be sanctioned by Congress, though it should go into effect as had like treaties which provided for a similar ratification. On this subject the writer refers to a report of the judiciary committee of the House of Representatives made in March, 1887.¹

§ 356. One other view may be presented. Treaty is international compact. The root of the word (tractare) indicates negotiation between two or more. In itself treaty is a bargain, not law. "It has the force of law, but derives it from the obligations of good faith."² No power is given to the President and Senate to effectuate the terms of the treaty by legislation. On the other hand, power is given to Congress by law to carry into execution all the powers vested in other departments, of which the treaty-making power is one. Can the conclusion be reached that the law-making department must then concur in action with the treaty-making power to make the treaty effectual as law to the people, or to execute its terms by needful and proper laws, especially as to those matters which are peculiarly confided to Congress? Can an inference in favor of executive authority be admissible in the face of this expressed delegation of power to Congress to carry the treaty into execution; and can it be held that it is obligatory upon Congress to do all of this, not discretionary, and that Congress must register the will of the President and Senate without power to dissent?

³ 1 Kent's Com., p. 235; Story's Com., sec. 1502; Foster v. Neilson, 3 Pet. 314; Turner v. American Bap-

tist Union, 5 McLean, C. C. R. 344; Taylor v. Morton, 2 Curtis, C. C. R. 454; Cherokee Tobacco, 11 Wall. 616; Head-Money Cases, 112 U. S. 580.

The precedents in our history are quite numerous, and some of them have been already mentioned. Attention may be called to cases where treaties have bargained for the acquisition of territory. We have already seen that Congress has power "to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States." But how is the United States to acquire such territory or property? It may be by purchase or cession from a foreign power. The contractual nexus between the United States and a foreign nation making cessions or selling territories can be established only by treaty. But when the grant is executed by the treaty, Congress will hold for the United States under the above grant of power, and if the grant be for a money consideration, Congress alone can appropriate the money.

In all of the precedents where money was to be paid, Congress has passed a law to appropriate it, but as to the transitus of the title the precedents are peculiar and instructive. The treaty with France for the cession of Louisiana was concluded April 30, 1803, during the recess of Congress. Mr. Jefferson was then President; Congress met October 17, 1803. The Senate ratified the treaty negotiations of the previous April on the 20th of October; it was proclaimed by the President October 21. The President sent a special message to Congress communicating the requisite papers for the purpose of the consideration of Congress in its legislative capacity and for the exercise of its functions which are within The power vested by the Constitution in Congress. "You will observe that some important conditions cannot be carried into execution but with the aid of the Legislature." Congress on the 31st of October passed a law authorizing the President to take charge of the Territory of Louisiana so acquired; thus, as the holder of territory belonging to the United States, giving its sanction to the acquisition of the territory by the treaty aforesaid.¹ In the same way, when the treaty between

the United States and Spain was made, by which Florida was acquired, Congress passed an act on March 3, 1819, authorizing the President to take possession of Florida according to the terms of the treaty.¹ The celebrated Ashburton treaty for the settlement of the northeastern boundary between Maine and the British possessions in 1842 established the boundary, by which part of the territory claimed by Maine passed to Great Britain, and part of the British territory passed to Maine. In the fifth article of that treaty it was provided that the United States should secure the consent of Maine and of Massachusetts, the mother State of Maine, to the adjustment of the boundary, and would pay over to those States the sum of money agreed to be paid by Great Britain.² This shows that Secretary Webster recognized the incapacity of the United States to cede by treaty any part of the territory of a State without its consent, and that the treaty-making power was qualified by the constitutional duty of the United States "to protect each State against invasion."³ So in the settlement of the boundary of Oregon by the treaty of 1846, and of the boundary between Mexico and the United States after the war by the treaty of Guadalupe-Hidalgo, Congress recognized and sanctioned the treaty by assuming possession and establishing governments over the territory acquired under that treaty.

The acquisition of Alaska in 1867 brought up the question as to the appropriation of the money agreed to be paid for its purchase. Congress passed a bill making an appropriation of money to carry the treaty with Russia into effect. The House of Representatives, however, had taken a stronger position, and on the 14th of July, 1867, by a vote of 113 to 43, it asserted the necessity of the consent of Congress to the said treaty, before the same should have full force and effect. From this proposition the Senate dissented, and the difference of opinion between the two bodies resulted in the act simply appropriating the money to carry the treaty into effect. It

must be conceded that the question, to some extent, is still a mooted one, but upon the precedents, and the authority of great names, the author submits that the conclusions here presented are just and in accordance with the principles of the Constitution. Another form in which the question has been presented was as to the validity of the treaty which gave an alien subject of a foreign nation with whom the treaty was made the right to hold land in a State, contrary to the law of the State against such right. These questions have been decided by the Supreme Court in favor of the validity of such a provision. This is an extreme view of the treaty power. It could change the law of the State in respect to land tenure within its borders. Perhaps it may be vindicated upon the ground that the Constitution expressly recognized the validity of treaties which had been made, under the Articles of Confederation, in which such a provision is inserted, e. g., in the treaty of 1778 with France; the recognition in the Constitution itself of the binding authority of these treaties would therefore seem legitimately to recognize the validity of any treaty containing such provision made under the present Constitution.¹

§ 357. The next clause to be considered is in these words: "and he shall nominate, and, by and with the advice and consent of the 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 tho heads of departments."

This great power, which gives the official patronage of the government primarily to the President as the nominator, and in a large number of cases to him as the exclusive appointing power, was the subject of great debate during

the convention, and has been at every period of the history of the government. The Senate is united with the President as the nominator in the appointment of ambassadors and all the superior officers of the government. The words, "whoso appointments are not herein otherwise provided for," indicate that there were in the minds of the framers of the

Constitution some officers created by the Constitution who were not appointed by the President. When we look for such, we find that the Vice-President is one of them, and that the officers of the two Houses, who are to be chosen by them respectively, are the others. These of course are excepted from the appointing power of the President and the Senate.

Again, the President takes the initiative and nominates, but cannot appoint any of these superior officers but by and with the advice and consent of the Senate. And that advice and consent, it will be noted, is not restricted, as in the treaty-making power, to two-thirds of the members present; but a majority of the Senate may advise and consent to the

appointment. This clause makes two classes of officers: those appointed by and with the advice and consent of the

Senate, and those who may be appointed under an act of Congress, the President alone, the courts of law or the heads of the departments. The first class included ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other offices which shall be established by law whose appointments are not otherwise provided for in the Constitution. The second class are those that are to be established by law, but on whom Congress imposes the character of inferiority, and gives their appointment to the President without the concurrence of the Senate.

It would seem that the Constitution meant to leave to Congress the determination of what officers are to be regarded as inferior. Let us consider the first class. The President nominates; that is, selects, and in terms appoints, these officers, subject to the advice and consent of the Senate. The Senate, quoad these appointments, is a council advisory to the

President. They advise and consent, but he appoints. Included in this class are those named in the clause, and all others established by law of Congress and not defined as inferior officers, to whose appointment the consent of the Senate is not needed.

A grave question was raised early in the history of the government, whether the officers in this first class could be removed, and by whom. Clearly the judges were not removable, because by a subsequent article it is provided, all judges "shall hold their offices during good behavior."¹ Judges;

and all other officers, by a subsequent section, are removable from office on impeachment for a conviction of treason, bribery, or other high crimes and misdemeanors;² but can the officers of this first class be removed otherwise than on impeachment? Must malfeasance and misfeasance in office be perpetuated unless the officer can be removed by impeachment? This question, as above intimated, was discussed in the First Congress. In the Federalist (Nos. 76 and 77) this question was quite fully discussed, and the opinion was expressed that the power of removal of officers of this first class, except judges, was incident to the appointing power, and it was insisted that as the officer was appointed by and with the advice and consent of the Senate, he could only be

removed by the President upon like advice and consent, Mr. Madison and others insisted that the appointing power and the removing power were executive functions, and that the President, as the chief executive officer, would, but for the special provision of the Constitution, have had the appointment as well as the removal of the officers of the government. But he argued that the power to appoint was really in the President, qualified by the necessity of the concurrent advice and consent of the Senate, and that as he was the appointing power, subject only to this qualification, the power of removal was not subject to any such qualification, and that he, as the appointing power, could remove without requirement of the concurrence and advice of the Senate. Accord-

ingly. in the bills which were passed by the First Congress for the creation of the heads of the executive departments, the power of the appointment of the various Secretaries of those departments was, by that act, accorded to the President, by and with the advice and consent of the Senate, with these words added: "to be removable from office by the President of the United States." It was moved to strike out these words, because it was contrary to the Constitution to give the President the power of removal when he appointed the officer by and with the advice and consent of the Senate. The motion to strike out was defeated, and the House passed the bill with the power of removal in the President alone, by a vote of 34 to 20. It was passed in the Senate by the casting vote of the Vice-President, and the bill was approved by President Washington.¹

That settled the question as to all offices in this first class, except the judges. The doctrine was vindicated upon the strong ground that malfeasance in office might occur during a recess of the Senate, and the prompt exercise of the power of removal was essentially necessary to the successful administration of the government; and that the President, who was charged by a later clause with the duty to take care that the laws be faithfully executed, would be impotent to do so, if he could permit an officer to remain in office when he was violating law, and perhaps embezzling the funds of the government. This construction of the Constitution has been recognized in a number of cases. The opinion of the Supreme Court in Ex parte Hennen² sanctioned this construction and treated it as settled by the custom and usage of the government. Mr. Justice Story, in his Commentaries, has given his approval to it.³ The settlement of the question in this way was not only based upon sound reason and authority,

Tucker's Blackstone, Appen., 341. See also President Johnson's veto message of the bill "to regulate the tenure of certain civil offices," March 2, 1867.

but is not liable to the objection that it affects the equilibrium between the delegated powers in the government and the reserved powers in the States. It is simply a question of the distribution of the delegated powers among the various departments of the government, and settling it according to the best view of the true meaning of the Constitution.

The case of Ex parte Hennen, above referred to, arose Tinder the second class of appointments, where a district court of the United States had appointed a clerk; the judge subsequently removed him without cause, and he sought to be reinstated by a mandamus from the Supreme Court; but the court held that the power to appoint involved the power to remove and reinstate. In the discussion of this question, however, the court went into a consideration of the other class of offices, and adverted in a section of its opinion to the mode in which it had been settled as above stated. In the later case of United States v. Perkins,¹ the court seems to sanction this settled rule, but to this case reference will be made hereafter. A question has arisen, whether, under the terms of this clause referring to this first class, the President may ex mero motu appoint an ambassador or public minister or consul, when Congress has not created those offices. This is a question which cannot be regarded as settled. The power to appoint to an office is executive; the power to create the office as the necessary and proper means for carrying into execution executive functions is a legislative power and clearly vested in Congress, in the co-efficient clause so often referred to.² It appears to have been done when the President nominated a minister for a mission not created by law, and the Senate undertook to inquire into the policy of establishing the mission and appointing the minister. It was decided by a small majority that the Senate had no such right; but the Senate has decided the other way on several occasions.³ Mr. Berrien in 1826 argued against the exercise

³ 5 Marshall's Life of Washington, ch. 5, p. 370; Story's Com., sec. 1528, note 1.

of this power of the President. It is probable that President Washington and President Adams both appointed ministers and envoys to foreign nations without the establishment by law of any such mission, notably, President Adams in sending the three envoys to the French Republic.

§ 358. It seems to be inconsistent with the distribution of power between the executive and legislative departments that the President should have the power to create these embassies and then to fill them. Why should the President be authorized to create the offices of the Supreme Court judges, and then to fill them, because of their being named immediately after in the same clause? The reason in favor of such a power in the President is very strong when applied to our relations to foreign governments, for the President might very often find it of importance to appoint some agent to go to a foreign court during the vacation of Congress for the purpose of negotiating a treaty or arranging some matter of conflict with that country. It appears that President Madison appointed the three ministers who negotiated the treaty of Ghent in 1815 without authority of law and during the recess of Congress. This was called in question, but not condemned by Congress. A subsequent provision of the Constitution was that the President should commission all officers of the United States. In the great case of Marbury v. Madison the question was raised whether an appointment was complete before the delivery of the commission. In that case Marbury had been appointed by the President, with the consent of the Senate, a justice of the peace for five years. The commission was signed by the President and the seal of office attached. It lay in the office of the Secretary, but had not been delivered when a succeeding President took the office. Mr. Jefferson, the succeeding President, held that the appointment was not complete until the delivery of the commission, and refused to deliver it. The Supreme Court held that it was complete by the signature of the President and the attachment of the seal to the commission, and delivery was not necessary to complete the appointment;

but at the same time deciding that they had no right to issue a mandamus, and their judgment was of no avail. The court held the commission was not like a deed and the grant of the office requiring delivery, but that it was merely evidence of the appointment, which had been completed.¹

In United States v. Perkins, supra, it was decided that the second class of officers, named inferior officers, the appointment of which Congress may vest in the President, courts, or heads of departments, cannot be removed by the appointing power except under the limitations, restrictions and regulations which such laws of Congress may enact in respect to them. As to these offices, Congress gives the power to appoint and may regulate the tenure of the office and the responsibility of the officer. This distinguishes this class from the first class. Those in the first class, appointed by the President and the Senate, are removable by the President, as we have seen, and Congress cannot take away from him the power of removal. It is a constitutional function vested in him as the executive of the government; but as to the second class of offices established by law, to which appointments may be made as Congress shall regulate, Congress has the power to dissent from the removal, because it has the power to vest the appointment. In Mullan v. United States² it was held that although Congress had provided that the President may not remove an officer of the army or navy, except in pursuance of the sentence of a court-martial to that effect, yet that it did not take from the President the power, by and with the advice and consent of the Senate, to supersede him by the appointment of another in his place.

In 1822 Congress passed a law in reference to certain inferior officers, making their terms of service four years, but with a reservation of power of removal by the appointing power.³ This was intended to give greater permanence to

States, 103 id. 227; Keyes v. United States, 109 id. 336. ³ 3 U. S. Stat. at Large, 582.

the office, but to reserve to the appointing power the right to remove where the officer was inefficient. In the administration of President Johnson, Congress passed an act called "The Tenure of Office Act."¹ It provided, substantially, that every civil officer, appointed by and with the advice and consent of the Senate, should hold such office until his successor should be appointed by the President, by and with the advice and consent of the Senate, and that the heads of departments should hold their offices during the term of the President by whom they were appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate. This was intended to force upon the President, members of the cabinet, irremovable by him without the consent of the Senate, who were antagonistic to him in partisanship, and who made permanent the tenure of all other officers appointed by the President with the consent of the Senate, until the Senate should consent to their removal. This had the effect of reversing the construction of the Constitution to which reference has already been made, and to take away from the President the constitutional function of removal, even as to his own cabinet. The veto message of President Johnson, supra, was a very able exposure of the unconstitutionality of this law. It was passed over his veto by both Houses of Congress, and is still, to a certain extent, the law of the land. President Grant recommended the repeal of the law, and Congress did repeal it in certain respects, leaving the provisions as cited still in force. General Grant, however recommended its total repeal. Those offices which Congress may make, to be filled by appointments from the President, the courts, or heads of departments, would seem to me to be such offices as belong peculiarly to the function of the President or of the court or of the head of a department. All such cases are by law made removable at pleasure by the appointing power, and the power to appoint by either of these could not by law of

Congress give to either the power to appoint the officers appertaining to either of the others.¹

A few more points I may mention. Notice by the Secretary of the Navy to an assistant surgeon that he has passed his examination for promotion is equivalent to an appointment by the head of a department.² One appointed by the assistant secretary, acting as head of the department, is in the second class.³ But a commissioner of pensions is not the head of a department, and his appointment does not create an officer of the United States.⁴ Removal of one officer is complete when a new appointment is made; the official responsibility of the one ceases and the responsibility of the other begins with the new appointment.⁵

§ 359. The next clause we shall consider is as follows: "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."⁶ This clause was adopted to prevent the inconveniences of vacancies in the first class of offices, when the recess of the Senate would make it impossible to fill them. Official duties were thus secured without interruption, by allowing the executive the exclusive power of appointment; but these appointments were to be but temporary. An accidental vacancy was not to change the mode of permanent appointment, and as no limit could be conveniently fixed during the ensuing session of the Senate, the temporary appointment was made to endure until the end of such session. During the session, however, the usual mode of appointment was practicable. The word "happen," in the clause, used with respect to the vacancy, related to some casualty, such as death, resignation, and the like; hence it has been held, and with good reason, that if the Senate is in session when the office is created, and the office is not filled until a recess,

the President may not fill it, for no vacancy has happened, as it was never filled.¹ But if the temporary appointment expires at the end of the session, without any permanent appointment with the consent of the Senate, still it is held that the vacancy occurs in the succeeding recess, and this even though the President nominates during the session and the Senate objects, or when he fails to nominate; for as the temporary appointment continues until the end of the session, when by the terms of this clause it expires, then the vacancy occurs at the end of the session, � at the expiration of the temporary appointment, � and the President may fill in the ensuing recess.² So a vacancy first occurring during the session of the Senate may be filled in the succeeding recess, for the vacancy happens in that recess, though it existed before the recess.³ Sustaining the opinions of their predecessors are Mr. Wirt, Mr. Taney and Mr. Legare. A controversy arose in the year 1814 as to the appointment of the commissioners to negotiate the treaty of Ghent. President Madison appointed three commissioners during the recess, without any law authorizing it. The Senate raised the question that the office first existed during the recess, thus conceding the President's power to make it; but no vacancy in the office so created happened in the recess. The office was empty; there was a vacancy in it because it had never been filled; but a vacancy did not happen. The Senate, however, protesting, confirmed the nomination. It has been also held that if the office be created by Congress during the session, and the President fails to nominate, he cannot appoint during the recess. The office never having been filled, no vacancy could have occurred. If the President appoints with a commission in the recess, both appointment and commission expire at the end of the next session. If during the session he nominates the same person, and the Senate concurs and such person be

² 1 Opinions of Attorney-General, p. 631; 2 Id. 525; 3 Id. 673; 4 Id. 361, 523.

commissioned, then the liability under the bond given by such person, upon his temporary appointment during the recess, ceases as soon as the officer accepts the new appointment made by the President and Senate.¹

It must be confessed that the terms of the Constitution in reference to appointments have not been so clear and explicit as to leave their interpretation free from difficulty, and the difficulty has not been removed by any adjudication of the courts, or by any authority arising from the concurrence of those departments of government whose powers are involved in the controversy. Mr. Justice Miller has animadverted upon the practice of the President on some occasions in appointing in a subsequent recess one whom he had appointed in a previous one and whose nomination had been rejected at the intervening session of the Senate. The learned judge's criticism occurs in his lectures printed since his death, but in his criticism he does not deny the constitutional power of the President to fill the vacancy, but only its propriety.²

Within recent years Congress has passed the Civil Service Law, which required, under rules to be prescribed by the executive, certain candidates for second-class offices, above referred to, to pass prescribed examinations as to fitness to fill the office. This could not apply constitutionally to the first class, where the President nominates and appoints with the consent of the Senate, because to establish by law any precondition as to the selection of the officer by the President would have been a breach of power. It could only be applied, therefore, as we have seen, to the second class; that is, to the inferior offices, as to which Congress could prescribe the mode of appointment and regulate and restrict the same at its pleasure. The policy of the Civil Service Law has been the subject of warm debates in Congress by public men and also in the public press. It has two prominent advantages if it shall be faithfully carried out: one is to limit the corruption resulting from patronage; and the second the improvement in the

public service. When it is considered that the offices to which it applies number hundreds of thousands, and that the faithful working of the system precludes the favoritism of the appointing power, which breeds corruption, and that the required examination of candidates makes fitness to fill the office rather than a reward for partisan service bestowed on one possibly wholly unfit for office the only requirement, it will be seen at once that however the law may be criticised for not being properly executed, the law itself, if fairly executed, is not open to censure, but should command the confidence and commendation of every lover of his country.

It is needless, in such a work as this, to explain the details of this Civil Service Law, and what has been said relates simply to its constitutionality.

§ 360. "He shall, from time to time, give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient."¹ Under this power President Washington and President John Adams met the two Houses of Congress and gave them the information referred to in an oral speech. This was and is the practice in England by the Queen, and in answer to the speech of the President, as in England, the two Houses made reply by resolutions, or the like. This clause indicates that the President, from his position as the executive head of the government, would, in the recess of Congress, be in a position to accurately get information as to the state of the Union which it would be desirable to be communicated to the two Houses in order to their legislation. Mr. Jefferson, upon his accession to the Presidency, began the practice of sending written messages to Congress from time to time, and that practice has continued until this day. The wisdom and policy of prescribing this duty for the President is so obvious that further comment is unnecessary.

The clause proceeds: "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 ad-^l Art II, sec. 3.

journment, he may adjourn them to such time as he shall think proper." The convening of both Houses, under this power, has been frequently exercised, when the condition of the Union required, legislation in the recess of Congress. The power to convene either of them, on extraordinary occasions, has reference to the necessity of the session of the Senate, which is associated with the President, as we have seen, in the treaty-making power and in the appointment of officers. Accordingly it has been the habit of every new President to convene the Senate to act upon nominations for the secretaries of the executive departments, who are to constitute the cabinet of the President, and of such other officers as are to be appointed at the beginning of an administration. The clause which relates to his power to adjourn Congress in case of disagreement between the two Houses in respect to the time of adjournment has reference to the provisions in the first article of the Constitution, section 5, clause 4, which reads: "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." It is obvious from this that both Houses, during their session, are linked together in such manner that each must continue in session unless the other consents to adjournment. Wherever such a disagreement arises, it is adequate to adjourn them to such time as the President shall think proper, but this power cannot be exercised as long as both Houses desire to remain in session. The exigency for the exercise of the executive power only arises when one House desires to adjourn and the other dissents, which disagreement may be settled by the decision of the President. We are not aware that any occasion for its exercise has ever arisen.

§ 361. "He shall receive ambassadors and other public ministers." This clause is treated by the Federalist as involving only the ceremonial power upon the reception of the public minister from a foreign power. This is one of the cases in which those sagacious writers did not realize the full

extent of the meaning of the Constitution. The power to do this is, under the Articles of Confederation, in Congress, and it has a deeper meaning and significance than the Federalist attributed to it.

When a foreign nation changes its government, it is well known that the new government generally sends to foreign countries representatives other than those who had been sent by the old. The presence of the representative of the old government in Washington, recognized as the minister of the foreign power, would embarrass the government if the representative of the new and contesting government of the foreign country appeared and presented his credentials. There must be ex necessitate some authority in our government to determine between these contestants for the honor of representing the foreign country. To whom should the power of deciding between them more properly be confided than to the officer who has power, by and with the advice and consent of the Senate, to negotiate and make treaties with foreign powers. The reception, therefore, of one or the other of these contestants is, by the clause under consideration, confided to the President.

Again, a revolution may occur in a foreign country, and a part may separate itself from the body of the nation, of its people, within territorial lines assumed by the revolution. Such an insurgent power may establish a government and send its representative to the government of the United States, and the question may arise, shall that representative

be received? For the reasons already adduced, it would seem that the power is properly vested in the President to determine whether the representative of the insurgent power shall be recognized. This is a delicate international question, and the premature recognition of the ambassador from the insurgent government may give cause for protest by the parent government, even to the point of war; for the recognition of the insurgent government gives moral, if not material, aid to the insurrection, which would be regarded by the parent government as contrary to the peaceful relations

existing between it and the United States. The question has never been definitely settled whether the President has the exclusive power of recognition in the case mentioned, or whether he has it in conjunction with the legislative department. In a number of cases in the Supreme Court the judiciary has decided that it can take no notice of the existence of any such new government until it has been duly recognized by the political department of the government.

Chief Justice Marshall said in one case: "The course of the United States in reference to the revolted portion of the foreign nation is regulated and directed by the legislative and executive departments of the government and not by the judicial department."¹ This language of the Chief Justice leaves it unsettled which of these departments is to decide, or whether both are to decide. The practice of the government in this respect has not been uniform. In some cases the recognition is attributed to the executive.² It is apparent, on slight consideration, that as the recognition may be an offense to the foreign parent government, such recognition may bring on war, The war power, as we have seen, is in Congress. If the executive can put the United States in a position where war will undoubtedly result, the war power may practically be in the hands of the President through this power of receiving ambassadors. It would seem, then, to be the duty of the President, before recognizing the ambassador or minister in such a case, to give information of the condition of things to the Congress, in order that there may be harmony in the action of the government on so important a question. In reference to Texas, the Senate Committee on Foreign Relations made a report June 18, 1836, through Mr. Clay,³ in which the latter says: "The President

of the United States, by the Constitution, has charge of their foreign intercourse, and he should take the initiative in the recognition of the independence of any foreign power. If in any instance the President should be tardy, he may be quickened in the exercise of his power by the expression of the opinion or by other acts of either or both Houses of Congress." Mr. Clay reported a resolution which passed Congress March 3, 1837, for the recognition of the independence of Texas, which resolution was signed by President Jackson, who said in his message December 21, 1836, "that it would be left to the decision of Congress;" and he then adds that "it will always be considered consistent with the spirit of the Constitution, and most safe, that it should be exercised, when probably leading to war, with a previous understanding with that body by whom war alone can be declared, and by whom all the provisions for sustaining its perils must be furnished." President Taylor, in June, 1849, through Secretary Clayton, sent Mr. A. D. Mann as a special agent to investigate the condition of the Hungarian insurrection. In his instructions he intimated that, if the new government proved to be firm and stable, he would be gratified to receive a diplomatic agent from Hungary before the next meeting of Congress, and he entertained no doubt in such case the independence of Hungary would be speedily recognized by that enlightened body. In making Congress the arbiter in this case President Taylor followed the precedent of President Jackson in the case of Texas. Even Dr. Wheaton, after reviewing these cases, closed with this remark: "The recognition by the United States, however, of the independence of Belgium, of the powers who threw off Napoleon's yoke, and of the South American States who have from time to time declared themselves independent of prior governments, has been primarily by the executive; and such also has been the case in respect to the recognition of the successive revolutionary governments of France."

Perhaps the best solution of the question is this: The power of recognition given to the executive in the clause we are

considering is to be qualified by the possibility of war as the result of it, and so to avoid conflict between the two departments the President should avoid the exercise of his power of recognition, unless by communication with Congress he finds that that body is in unison with him, so as to furnish the means necessary to meet the issue of war, if it should result from recognition.

§ 362. "He shall take care that the laws be faithfully executed." This executive duty extends to the carrying out of the laws of the United States to the extent of the several means placed in his hands.¹ It has been decided in the leading case of Mississippi v. Johnson, that this executive power cannot be the subject of injunction by the Supreme Court, and that his action for the faithful execution of the laws is in his discretion a judgment and beyond judiciary control.² The harmony of this clause with the appointing power, as to all important executive officers, is very obvious, and taking the two together would clothe the President with power to select the agents through whom the laws are to be executed, and to take care that they shall be faithfully executed through those agents. This clause was regarded by Mr. Madison as very important in establishing the power of removal by the President, even though he had been appointed by and with the advice and consent of the Senate. The last clause of this section is that the President "shall commission all officers of the United States." The discussion of the distinction between the power to appoint and the power to commission, and that the appointment of the officer is complete when the commission is signed, though it be not delivered, was full and exhaustive in Marbury v. Madison?

Section 4 of this article provides that "the President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery or other high crimes and misdemeanors."

This clause should be considered with article I, section 3, clauses 6 and 7. By these clauses, if the President should obstinately retain a faithless officer in the public service, such officer may be removed by this judgment of impeachment, and by such judgment may be disqualified to hold office, and therefore cannot be appointed thereto by the President.¹ We have seen that senators and representatives are not civil officers within the meaning of this clause.²

§ 363. Before closing the comments upon the executive, a few miscellaneous points may be adverted to. Congress has the power to declare war; the President, who is commander-in-chief, executes it. During the Mexican war the President, as commander of the invading army in Mexico, took possession of certain portions of that territory, and set up temporary governments there, superseding the local Mexican authority. At the time his power to do so was seriously questioned; but in the case of Cross v. Harrison,³ in the Supreme Court in 1853, the power of the President to do so is fully vindicated by the court. After the treaty of peace by which the territory was acquired, it devolved upon Congress to establish governments within that territory, which superseded those established by the President, which were held only to be valid during the military occupation.

During President Grant's administration Congress passed resolutions congratulating the Argentine Republic and the Republic of Pretoria in South Africa, upon the successful establishment of their republican government. One of them directed the Secretary of State to acknowledge a dispatch of congratulation from the Argentine Republic, and the other to communicate to the Republic of Pretoria the high appreciation of Congress of the complimentary terms, etc. President Grant vetoed both of these resolutions on the ground that the President was the proper agent, under the Constitution, for intercourse with foreign nations,

and held that it was unconstitutional for Congress to have any such communication with a foreign power. Congress did not attempt to pass the resolutions over the veto of the President.¹

Reference has been made in what has already been said to the power of the President to create an office and then to appoint to it. It is very obvious, however, that the power to create offices belongs to Congress, from the language of the second clause of the second section of the second article of the Constitution, which speaks of offices which shall be established by law, and to which the President may appoint, with the advice and consent of the Senate. It is true that it authorizes the President "to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court," etc. Whether, if there were no law establishing ambassadors, other public ministers and consuls, and judges of the Supreme Court, the President could appoint them, may admit of doubt. Certainly he could not appoint the judges of the Supreme Court until that court was organized under a law of Congress. That the President may employ agents of his own appointment to ascertain facts in reference to our foreign relations has had several precedents in our history; e. g., in the case of Mr. Mann, appointed by President Taylor to go to Hungary and report upon the condition of things there. In the employment of such agents the President does not create the office, but he exercises the power as a proper means for the execution of the power clearly vested in him, of negotiating treaties and managing the foreign relations of the country. The question of the extent of the President's power in this regard arose upon the proclamation of neutrality issued by President Washington at the outbreak of the European wars between Great Britain, Prance and other countries, and the question was discussed with remarkable ability in the papers of Pacificus and the papers of Helvetius, � the first by Alexander Hamilton, and the other by ¹ Message of January 26, 1877. Messages and Papers of the Presidents (Richardson), vol 7, p. 430.

James Madison; which may be referred to as containing the arguments of two great men upon this controversy.

The only remaining power which has not been mentioned, under this head, vested in the President, is what is known as the "veto power;" but this has been so fully discussed heretofore¹ that further comment is deemed unnecessary.

A singular question arose upon a message of President Grant of October 14, 1876, returning with his signature the River and Harbor Bill to the House of Representatives, in which he announced his objections to some features of the bill, and then said "if it was obligatory upon the executive to spend all of the money appropriated by Congress, I should return the River and Harbor Bill with my objections.... Without enumerating, many appropriations are made for works of purely private or local interest, in no sense national. I cannot give my sanction to these, and will take care during my term of office no public money shall be expended upon them.... Under no circumstances will I allow expenditures upon works not clearly national." By the signature of the President the bill became a law; and it was the duty of the President to take care that the law be faithfully executed. In the face of this duty he announced that he should take care that the public money should not be expended upon those works which in his opinion were not national. It was competent for the President to have vetoed the whole bill, but, having signed the bill, it was not competent for him to refuse to execute a part of it and virtually to veto that part � a power which unquestionably did not belong to him. He must sign the whole bill or veto the whole bill. It did not seem to occur to the President that he was assuming the power expressed by James II. in 1688 � to dispense with the execution of the law when it was his duty to execute it faithfully; that his failure to execute the laws was contrary to the British Constitution, and that this was the principal cause of his leaving the kingdom and abdicating the throne. In the Convention Parliament ¹ Ante, § 213.

a clear denunciation of this dispossessing power on the part of the Crown was inserted in their Bill of Rights; and yet the power assumed by President Grant in his message was to execute so much of the law as he approved and dispense with the residue. President Grant, with a view to enabling the President to veto certain appropriations in a general bill while sanctioning others, recommended an amendment to the Constitution to that effect, which was also done by President Cleveland in a later administration. The question was referred to the Committee on Judiciary in the 49th Congress in the form of resolutions to amend the Constitution so as to give authority to the President, when a bill contains more than one appropriation, and has passed both Houses, to veto any of the appropriations and approve the others. The committee reported against such an amendment, and the grounds upon which it was done may be seen by reference to the report.¹ The prominent reason urged by the committee against such an amendment

(which was incorporated into the Constitution of the Confederate States) was that appropriations may be made by Congress for various purposes, all of which in their opinion it was proper to make, and which are voted for by members as dependent appropriations; the combining them in one bill is intended to prevent the partial exercise of powers for expenditures in one State which were proper to be made in other States and sections. The vote of Congress for any one of them is therefore secured for all on condition that each shall be valid. If the President, therefore, could by the veto power separate these dependent appropriations, and allow one class while the other classes were vetoed, it would give to him enormous and dangerous powers, against the will of Congress, to make partial and unjust discriminations between the different sections of the country.

§ 364. In the orderly arrangement of the Constitution, the first and second articles have prescribed the Constitution and defined the powers of the Legislative and Executive Departments; the third article relates to the Judicial Department. The language of the first section is as follows: "The judicial power of the United States shall be vested in 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 behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." This clause may be read in connection with the clause "to constitute tribunals inferior to the Supreme Court."¹ As was declared in reference to the other two departments, this declares the judicial power of the United States shall be vested in one Supreme Court. "Judicial power," not legislative or executive power. These three articles therefore seem to indicate the clear intention to keep the three departments of government in distinct hands, according to the famous maxim of Baron Montesquieu. The framers of the Constitution, looking to the independence of the judiciary and the independence of all the departments of the government, as well as to the passions and opinions of the people, following the precedent of the English government in the third year of William and Mary, made the tenure of the judicial office "during good behavior,"² so that there is no power to remove a judge except under the clause in respect to impeachment.

Again, the Judicial Department, as an independent one, is essential to the paramount force of the Constitution. It was the intention of the framers of the Constitution that the judicial power should be the protector of the Constitution against violation by either of the other departments, or by the States. Mr. Hamilton, in the Federalist,¹ discusses this point, upon reason which only foreshadowed the masterly judgment of the great Chief Justice in the case of Marbury v. Madison,² which rests upon the simple proposition that, as between two laws or between two authorities, the supreme must have effect given to it over the subordinate, in order to preserve the integrity of the Constitution. The court does not assume superiority over the legislative or executive departments. By its judgment it gives its supremacy which is superior to all over the ultra vires acts of either of the departments, or of any officer or State. Without such a judicial power the paramount force of the Constitution would have been paralyzed, and the departments of government would have held practical supremacy over the supreme law of the land. In fact, it is the essential attribute of judicial power, wherever vested, whether in the Supreme Court or a justice of the peace, to give effect to the paramount law, and where the supreme law and the subordinate law come into conflict, to declare that the former shall have effect and that the latter shall be null and void. The clause goes on to insure this independence by requiring that these judges shall not only hold their offices by the tenure of good behavior, but shall receive for their services a compensation which shall not be diminished during their continuation in office. It may be increased, if Congress shall see proper to add compensation for services inadequately compensated, but it shall not be diminished. The power that holds the purse strings shall not starve a judge into compliance with its demands. This is distinguished from the provision as to the President. His compensation shall neither be increased nor diminished during the term of office. It

remains to consider in whom this judicial power is vested. The legislative powers were vested in a Congress; the executive powers in a President. In whom shall the judicial power be vested?

§ 365. (a) In one Supreme Court. The unity of the court is assured in order to its supremacy. It is a constitutional court; not created by law, nor to be dispensed with by law, but to be organized by law under the terms of the co-efficient power. The Constitution does not prescribe of how many members it shall consist, hence Congress must make the laws necessary and proper to carry into execution the power vested in this one Supreme Court, in whom the Constitution of the United States vested the judicial power.¹ It will be noted that the Constitution says nothing of the Chief Justice at all, but in a previous provision it is declared that the Chief Justice shall preside when the President of the United States is tried upon impeachment. This by clear inference enjoins upon Congress, in the organization of the Supreme Court, the creation of the office of Chief Justice. (b) The judicial power of the United States shall be vested not alone in one Supreme Court, but "in such inferior courts as the Congress may from time to time ordain and establish;" and as already shown, this clause corresponds to a previous article of the Constitution.² (c) As nothing is said in this clause as to the number of judges in the Supreme Court, Congress must, by law organizing the court, determine this question; accordingly, the Judicial Act of 1789, drawn by the master hand of Oliver Ellsworth, prescribed all of the particulars in the organization of the Supreme Court; but it must be well noted that the jurisdiction of the Supreme Court is constitutional. Its organization is defined by law, but when once organized it is the reception for all of the powers supplied from the judicial reservoir of the Constitution itself, from which Constitution, and not from Congress, save through the medium of the coefficient power of Congress, it derives all of its authority.

The jurisdiction of the inferior courts not being prescribed by the Constitution itself must be fixed and defined by Congress under the co-efficient clause, so often referred to. It will thus be noted that while the Constitution itself defines the jurisdiction of the Supreme Court, the jurisdiction of the inferior courts is prescribed and defined by law of Congress. As to the latter Congress has full discretion; as to the former it has none, except as a subsequent clause gives qualified power to Congress to make regulations.

Under this power to ordain and establish inferior courts, as well as to make laws to organize the Supreme Court, there have been constituted and now exist, as the judicature of the United States, the following courts: First, a Supreme Court, now consisting of a Chief Justice and eight other associate justices. Second, circuit courts, district courts and intermediate courts of appeal. Third, a court of claims, as to suits against the United States, established originally in 1853, with jurisdiction enlarged and qualified by the act of 1887. Fourth, courts in the Territories, which have been decided not to be United States courts, where therefore the judges hold at pleasure and not during good behavior.¹ It will be perceived, therefore, that if Congress had not by law exercised this co-efficient power above referred to, there would have been no Supreme Court of the United States of any kind, and the State courts would have been left as the judicial conservators of the Constitution of the United States against unconstitutional laws by Congress or the States, and would have held all the jurisdiction which by the Constitution is intended to be conferred upon the Federal judicature; and so now, except so far as the judicial power has been delegated to and vested in the Federal courts by the Constitution and the acts of Congress, nor prohibited by it to the States, the latter has the complete reserve power to deal with all such

Further, the jurisdiction of the Supreme Court is defined by a subsequent clause of the Constitution in these words: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned (that is, mentioned in a previous clause which has not yet been referred to) 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."^l

Thus as far as the original jurisdiction is concerned, that is vested by the Constitution itself, without power of Congress to qualify or regulate it. But as to its appellate jurisdiction, the Supreme Court holds it both as to law and fact, with such exceptions and under such regulations as the Congress shall make, thus giving to Congress a very large discretion in the limitation of the jurisdiction of the Supreme Court and in the regulation of such as it generally exercises. Accordingly in the act of 1789, and of the other acts of Congress upon this subject, the discretion of Congress has been largely exercised in limiting and excepting from its appellate jurisdiction a large number of the cases that are mentioned in the previous clause. So that the appellate jurisdiction of the Supreme Court and the ordinary jurisdiction of other Federal courts is capable, under the Constitution, of greater enlargement than has been prescribed in the acts of Congress. This will be qualified as we proceed.

The general nature of the judicial power of the United States is described in the second section and first clause of this third article of the Constitution. The language will be quoted in full: "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 affecting am-

bassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between 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." This general system has always been analyzed into, first, cases which belong to the jurisdiction of the Federal courts because of subject-matter; second, to cases which belong to the Federal jurisdiction because of parties. The word "cases," here used, and the word "controversies," several times used in the above-quoted clause, may be defined as "where parties litigate before a court as to rights of property or person." Judge Tucker^ldistinguishes between cases and controversies thus: "Cases here seems to include all cases, criminal as well as civil, and controversies only such as are of the civil nature;" and this distinction of Judge Tucker is in accord with the opinion of Justice Iredell in Chisholm v. Georgia,² and by Judge Story in his Commentaries.³ Now the jurisdiction extends to all cases in law or equity; this obviously fixed in the organism of the Federal judicature the two jurisdictions of common law and chancery. These jurisdictions were parts of every one of the original States, and that made this distinction between law and equity a part of the Constitution of the United States. These are constitutional branches of the Federal judicial procedure, and the new procedure which ignores this distinction in the States and the civil-law system in Louisiana, which never recognized it, will not be always left to ignore the distinction between these two branches of jurisdiction in any cases arising in a Federal court, though it may in a State where law and equity are not recognized as distinct jurisdictions.⁴ The cases in law

⁴ Thompson v. Railroads, 6 Wall. 134; Hunt v. Hollinsworth, 100 U. S. 100; Northern Pacific R. R. v. Paine, 119 id. 581, and many cases cited.

or equity arising in the Federal jurisdiction on account of subject-matter may be arranged under the following heads: First, cases arising under the Constitution of the United States; as where a law of the United States or of the States is repugnant thereto, and a right protected by the Constitution is violated by the law, and in like cases where the executive power trenches upon the personal and constitutional right of the citizen. Second, cases arising under treaties made under the authority of the United States; as where a right secured to a party under a treaty made under such authority is violated, the party may assert his right by a case as it so arises under treaty. Third, cases arising under the United States laws; and United States laws made in pursuance of the Constitution are the supreme law of the land.¹ A personal right secured under such law of the United States, if violated, may be the subject of a suit for its vindication. That is a case for Federal jurisdiction arising under the laws of the United States; thus, cases in bankruptcy, cases of patents, copyrights, and so on. In the case of Boyd v. Nebraska,² Boyd claimed, under the naturalization law of the United States, that he was eligible to the office of Governor of Nebraska. The State denied it to him, and he asserted his right before the Federal courts, and the Supreme Court adjudicated in his favor. It was a case of right to a State office, arising under the law of the United States, and yet denied to him by the State. Fourth, admiralty and maritime jurisdiction. The vindication of this jurisdiction being vested in the Federal courts will be found strongly stated in the Federalist? A word may be added in respect to it. To have left the final arbitrament of cases involving the repugnance of the law of Congress or of the State to the Constitution of the Union, or any right secured by the Constitution of the United States to a person, or by a treaty made under its anthority, or of the law made in pursuance thereof, to the jurisdiction of the local courts of the States, would have not only subjected this class of ques-

tions to as many contrary decisions as there were States in the Union, but would have paralyzed the essential force of the Constitution itself, by subjecting the extent of its operations to the judgment of local courts. It was therefore reasonable to confer upon the courts, created under the authority of the United States, to vindicate in their full integrity the provisions of the Constitution itself as well as the laws and treaties made under its authority. Again, as admiralty and maritime jurisdiction belongs to the realm of commerce, and must be under the supervision of the power which regulates foreign and interstate commerce, it would become a necessity to subject the construction of the laws made by Congress in reference to commerce and the general questions of commercial relations with foreign nations and among the several States, not to the local tribunals of the several States, but to judicial tribunals who held their authority under all the States in their united character.

§ 366. As to the jurisdiction which grows out of the character of the parties without regard to subject-matter, that may be defined as follows: First, where ambassadors, other public ministers and consuls are affected. Every government, by international law, is responsible to foreign nations for the treatment of their ambassadors, public ministers and consuls. Improper treatment may be a casus belli. The government which receives them and deals with them is responsible for their treatment, and should have in its own organization the means to meet the demands which international duty imposes. To leave cases affecting these public officers of foreign nations, sent to deal with the government of the United States, to the jurisdiction of the State courts would be an anomaly in our system. The courts for the trial of such cases should, therefore, be those of the United States, and that irrespective of the subject-matter of the case. Second, "to controversies to which the United States shall be a party." Cases in which the United States are interested could not properly be left to the jurisdiction of the local courts of the place. There would be as many diverse decis-

ions in respect to the rights as there were States in the Union. The rights of the United States can therefore only properly be asserted and vindicated in the courts of the Union. Third, "to controversies between two or more States." How could a fair and just arbitrament of such controversies be found in the courts of either of the States involved in the controversy, and where could a fair and impartial arbitration be sought but in the courts of the whole Union. Fourth, "between a State and citizens of another State." If the other State courts were left to decide such a controversy, could the opposing State hope for impartiality? The courts of the Union are therefore selected as those which must decide such a controversy. Fifth, "between citizens of different States." The same danger of partiality would arise here, for the court of the State of the defendant would naturally be inclined to favor the defendant against the stranger plaintiff. The court of the Union, though held in the State of the defendant, is therefore selected as the fairest tribunal for the trial of the controversy. Sixth, "between citizens of the same States, claiming lands under grants of different States." The courts of either of the States granting the land might naturally be supposed to support the title conferred by the State to which they belonged, and hence the jurisdiction for such cases was sought in the more impartial attitude of the courts of the Union. Seventh, "between a State, or the citizens thereof, and foreign States, citizens or subjects." In this case the same reason would apply to give to the United States courts the jurisdiction instead of the courts of the State whose own interest, or that of their citizen, was in controversy with a foreign State or a foreign citizen or subject.

It will thus be seen by this brief review that the framers of the Constitution were sagacious in selecting the Federal tribunals for the decision of cases where the character of the parties would make the decision of the State tribunals less fair and impartial in the decision of these controversies than the local courts of the States. So that we see, in the

reason of the thing, the vindication of the wisdom of the Constitution, which vested in the judicial power of the United States the decision of these two great classes of cases. First, where the subject-matter of the case, without regard to the character of the parties; and second, where relations of the parties, without regard to the subject-matter in controversy, make it proper to vest the jurisdiction in the Federal rather than in the State courts.

The language of the clause extends the judicial power to all cases arising under the Constitution, etc.; to all cases affecting ambassadors, etc.; to all cases of admiralty and maritime jurisdiction; and then changes the phraseology as to the other classes of cases already referred to, extending the Federal jurisdiction to those cases, but not to all such cases. The insertion of the word "all" as to some of these, and the exclusion of it as to others, would seem to indicate, as a fair construction of the whole, that those cases where the word "all" is used may, by the action of Congress in defining the jurisdiction of the inferior courts which it is authorized to ordain and establish, and in those cases where the Supreme Court's appellate jurisdiction is to be subject to such exceptions and regulations as Congress shall make, be exclusively given to the United States courts. But as to those where the word "all" is not used, the State judiciary may be left to have concurrent jurisdiction with the Federal courts, but subject to the power of Congress to bring them within the Federal jurisdiction. It has been held in a number of cases that in these cases of concurrent jurisdiction, whichever court, Federal or State, gets jurisdiction first of the subject-matter or of the parties, will hold it against the interference of the other.¹

The scheme of the judicial department was obviously, first, to make the judicial power commensurate with the ex-

¹ Smith v. McIver, 9 Wheat. 532; Hagan v. Lucas, 10 Pet. 400: Shelby v. Bacon, 10 How. 56; Ableman v. Booth, 21 id. 506; Freeman v. Howe,

24 id. 450; Noonan v. Bradley, 9 Wall. 404; Covill v. Heyman, 111 U. S. 175; Rio Grande R. R. v. Gonida, 132 id. 478.

ecutive and legislative powers of the government. Second, to make all cases which concern all of the States, or any of the States, or the citizens of the different States, cognizable by the Federal courts, and not leave them to the adjudication of any one of the States. Third, to provide that what concerns the relations of each of the States to foreign nations, or to the people of foreign nations, must be adjudged by the tribunals constituted by all of the States, and not by those constituted by any one State. All being interested in the results of the adjudication in such cases, the rights of all should not be subject to the capricious or partial action of any one.

§ 367. We will proceed now to consider these various branches of jurisdiction in consecutive order. First, all cases arising under the Constitution, etc., shall be within the scope of the judicial power of the United States. From what has been already said, it will be seen that it is of the nature of judicial power to decide upon the constitutionality of any law or act of the government. The supremacy of the Constitution over all such laws and acts is admitted in theory; but how shall this supremacy be made effectual, unless in the decision of controversies arising, etc., if the courts trying the question cannot give practical supremacy to the Constitution by declaring the law or act of the government inoperative, null and void? It is therefore of the very nature of judicial power to subordinate the laws and acts of the government to the Constitution by declaring such acts to be null and void where they conflict with the Constitution.

The leading case of Marbury v. Madison,¹ in which the masterly judgment of Chief Justice Marshall has exhausted the reasons for this principle, is all that may here be referred to. That such a power was contemplated by the Constitution is evident from the writings in the Federalist? It is obvious, however, that the judicial power of each State, in deciding upon a case arising under the Constitution, might be in favor of the constitutionality of the law or act of the government, and the decision in another State might

be against it. The effect of these diverse decisions upon the same class of cases arising under the Constitution, while conclusive as to the particular controversy, would make the Constitution in effect different in the different States and in its application to these various cases. The Constitution itself, therefore, declared to be the supreme law of the land, would be one thing in one State and a different thing in another State. This would be not only an anomaly in our system, but a great grievance; for instead of one uniform Constitution operating either upon all the States and the people of the entire Union, we should have as many Constitutions, in effect, as there were diverse opinions among the State judges deciding upon such questions. It is therefore of the first importance that some means should be devised, and that through the judicial department, for making the Constitution uniform in its operation by uniform decisions as to its meaning in every State in the Union and binding upon all the people of all the States. How is this uniformity to be reached? Some device must be invented by which these diverse decisions may at last be brought to the arbitrament of the one Supreme Court in whom the judicial power of the United States is vested. This would make the Constitution uniform in its effect, as it is in theory, and in no other way can it be done. Modes of doing this were possible. Congress might so constitute the inferior Federal courts as to give them exclusive jurisdiction over such cases as by the Constitution were within the scope of their jurisdiction. But this would be a great evil, e. g.: a suit by a citizen of New York against a citizen of Virginia is between citizens of different States, and therefore within the jurisdiction of the Federal courts. But to make it exclusive in these courts would require a suit for $5, as well as a suit for $100,000, to be brought in the United States court, which, looking to the distance of these courts, in many cases, from the parties and witnesses whose attendance would be necessary, would make the expenses of litigation too onerous to be borne. Besides, every lawyer will see at once that the

Federal question, wherein the cases may be said to arise under the Constitution, may never emerge in the course of the controversy until upon the trial of the cases, which would be after the court had taken jurisdiction. In other words, the State court in limine would seem to have full jurisdiction, but the constitutional question, supervening in the course of the trial, would show that the Federal court might have had jurisdiction. Hence, in the Judiciary Act of 1789, this exclusiveness of jurisdiction in the Federal courts was reversed and the limit of that jurisdiction is found in cases where the amount involved in controversy was $500, and now by the act of 1887 raised to $2,000. This first method, therefore, was never adopted, as being impracticable. Second, another method might have been adopted: to authorize a removal of a case begun in the State court to the Federal court whenever a constitutional question was involved; but this was inconvenient and impossible for the reason already suggested, that the constitutional question might not emerge until the trial of the case was begun. The original jurisdiction, therefore, could not by anticipation be fixed in the Federal court, because non constat the Federal question might ever arise. But this process of removal has been adopted from the beginning where the character of the phrase involving a constitutional question was apparent from trial. This will be referred to hereafter. Third, it might have been made lawful to litigate in the United States court a controversy once adjudged in the State court, when it was apparent that such adjudication involved a constitutional question proper for the judgment of the Federal court; but this would be very awkward and inconvenient. Fourth, another method was adopted by the act of 1789 and has continued until this day. The twenty-fifth section of that act provided that when the highest appellate court of the State decided adversely to a right claimed under the Constitution of the United States, or under a treaty or law of the United States, the party so decided against might appeal from the supreme appellate court of the State to the Supreme Court of

the United States. This allowed to the litigants all the advantage which they might claim from the litigation being conducted in the local State court. The party whose constitutional right might be supposed to be violated by the decision of the inferior court was required to secure the vindication of his right by final appeal to the supreme appellate court of the State. If this last decided adversely to his claim, he could make his appeal to the jurisdiction of the Supreme Court of the United States.

The constitutionality of this law was fiercely contested in the early part of the century on the ground that the appeal from the highest State court to the Supreme Court of the United States assumed the relation of the superiority of the one to the other when it was held that each was supreme in its own ascertained sphere and there was nothing in the Constitution to make the judicial power of the United States supreme upon appeal over the judicial power of the State. It was contended that the Federal and State judiciary constituted co-ordinate departments of two distinct governments, and neither held the relationship of supremacy on appeal. The reasoning on this subject will be found in full in the great case of Fairfax v. Hunter.¹ In this case an appeal was taken from the decision of the Court of Appeals of Virginia to the Supreme Court of the United States, and in Martin v. Hunter²the decision of the Virginia Court of Appeals was reversed, and the Supreme Court issued its mandate to the Court of Appeals to substitute the decision of the Supreme Court in place of its own. The Court of Appeals refused to obey; the Supreme Court declined to attempt to compel obedience by a further procedure, but by its own officer put the party prevailing under the decision of the Supreme Court of the United States in possession of the property in controversy.³

³ The author, after searching in vain in the record of the Supreme Court for any evidence on this subject, obtained from Mr. James Marshall, a very eminent lawyer of

Winchester, Virginia, a nephew of the Chief Justice, these facts in reference to the action of the Supreme Court, and the end of that controversy. See also Williams v. Bruffy, 102 U. S. 248.

That was the end of the conflict. In the case of Martin v. Hunter the Supreme Court agreed that the twenty-fifth section of the act of 1789 was constitutional, and in Cohens v. Virginia^l Chief Justice Marshall vindicated it in one of his most famous opinions. It is unnecessary to discuss the merits of this celebrated controversy, for the State courts throughout the Union, in Virginia as well as in the other States, have recognized the finality of the decision of the Supreme Court, and for nearly eighty years this has been established in all of the courts as a settled construction of the Constitution. Besides, an analysis of this twenty-fifth section will show that it adopts a more convenient system for the people in securing trial of these cases in their early stages by State tribunals and under local influence, which would not have been the case if either of the other methods referred to had been adopted.

§ 368. We proceed to analyze this section. First, the Supreme Court of the United States, in the cases provided for by it, is given the final appellate jurisdiction. The original trial and procedure is in the inferior court of the State. From the decision of this inferior court an appeal must be taken mediately or immediately to the highest appellate court of the State itself. Again, upon this appeal in the Supreme Court of the United States, nothing will be held as ground for reversal of the decision of the State court unless that decision rested on a ground which involved a right under the Constitution or a treaty or law of the United States, and such decision must have been adverse to such right as claimed.² If, however, the State appellate court so decides by a divided court, so that the decision of the inferior court would stand affirmed, an appeal still lies to the Supreme Court of the United States;³ or if the State appellate court denies an appeal from the decision of the inferior State court, which was adverse to such rights so claimed, an appeal still lies to the Supreme

Court of the United States.¹ But if the decision of the State appellate court rests on some ground other than one involving the rights so claimed under the Constitution, or a treaty or law of the United States, no such questions arising in the cases, the Supreme Court of the United States will not have jurisdiction upon appeal, and if an appeal be taken will consider no error in the decision other than where it rests upon a decision adverse to the rights so claimed under the Constitution. The Constitution gave this jurisdiction to the Supreme Court that it might be the guardian of the Constitution of the United States, their treaties and their laws, but not upon any other ground.² It thus appears that this twenty-fifth section was faithfully guarded so as to give the State court the exclusive and final jurisdiction of any case, though a question of a right under the Constitution, or a law or treaty of the United States, may arise therein, unless the decision of the State court necessarily involves the denial of the rights so claimed by each party in the case. Cases without number arising under the Constitution have thus been decided by the Supreme Court of the United States, the citation of which will be made as occasion calls for it hereafter. A few may be cited where the constitutionality of the law has been in question.³ The unconstitutionality of the act of the Executive Department in Milligan's Case was adjudged and the sentence annulled.⁴

Where an inferior United States court convicts a person without having jurisdiction to try, the Supreme Court, having no appellate jurisdiction in such cases, will, upon habeas corpus, discharge the convict.⁵ Where State laws are in violation of the Constitution, decisions of the State courts giving effect to them have been reversed by appeal in the Supreme

² Murdock v. Memphis, 20 Wall. 590; Spies v. Illinois, 123 U. S. 131; Henderson Bridge Co. v. City of Henderson, 141 id. 679; Hamblin v. Western Land Co., 147 id. 531; Eustis v. Bolles, 150 id. 361.

⁵ Bain's Case, 121 U. S. 1; In re Ayres, 123 id. 443; Fitts et al. v. MoGhee et al., 172 id. 516.

Court. Under this head the cases are innumerable.¹ Thus, however a constitutional right may have been invaded, whether by Congress or any of the departments of the government, or by State law or any other action of a State, on appeal to the Supreme Court of the United States the integrity of the Constitution will be vindicated, and all laws violating that Constitution will be adjudged null and void. This clause goes farther. The Supreme Court, under this twenty-fifth section, can by appeal annul any violation of a right claimed under a treaty made under the authority of the United States. This was done in the case already cited of Martin v. Hunter,² where a treaty right was involved. So this twenty-fifth section applies to rights claimed under a law of the United States. If the law is valid, then, in effect, this right is under the Constitution of the United States, because under a law passed in pursuance of it; and when such right is violated by a State court, the decision will be reversed and the right upheld, as in the case of Boyd v. Nebraska,³ already referred to.

§ 369. Further, this judicial power extends to all cases in law and equity, whether cases at common law or cases in the chancery. Mr. Hamilton has vindicated the propriety of retaining these distinct jurisdictions in the Federal courts with his usual ability.⁴ This first clause uses the words "shall extend to all cases." This clearly means that while Congress has power under the succeeding clause to make exceptions from, and regulations of, this appellate jurisdiction, yet that Congress has the power to extend the jurisdiction to all cases without the exceptions and without any rule abridging it. The judicial power extends to all such cases as it would seem should not be abridged or abated by any action of Congress.

The next clause which calls for comment is in these words: "to all cases affecting ambassadors, other public ministers and consuls." It is only necessary to say that the extension of the judicial power to all these cases, and especially by a subsequent clause giving the Supreme Court original jurisdiction in such cases, manifested the wisdom of the framers of the Constitution in preserving the peace of the whole country in its relations with foreign countries. Public ministers of either class are the immediate representatives of their sovereigns. They are invested with an exterritoriality while resident in the country to which they are sent, which gives them immunity from all the laws of the latter. These immunities are determined by the law of nations. If the immunities and privileges of these public functionaries are invaded while they reside in the United States, the sovereign sending them can make it a subject of international controversy which may end in war. Should suits in which these public persons are interested be left to the courts of the States it would be a dangerous anomaly. The government of the United States is responsible to the sovereign sending a public minister for his exemption from everything which trenches upon his exterritorial immunities and privileges. It is therefore clear that the judicial power of the government, internationally responsible for matters affecting these public ministers, would be clothed with complete power to try all cases affecting them.¹ Therefore in the subsequent clause it is provided that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors. Under this provision an indictment against one who has offered violence to a minister has been held not to be a case affecting the ambassador. It is a case affecting the United States, in which the ambassador has no concern.² But if a suit be brought against a foreign

¹ See opinion of Chief Justice Marshall in The Exchange v. McFaddon, 7 Cr. 478; Story on Constitutional Law, pp. 1652-51

minister, the Supreme Court alone has original jurisdiction, and so it would seem with any one connected with his legation.

This jurisdiction has been very much affected by Congressional legislation. As the language extends the jurisdiction of the judicial department to all cases affecting ambassadors, etc., it involves the power of Congress to make this jurisdiction exclusive of that of State courts. But though original jurisdiction is given by a subsequent clause, in such cases, to the Supreme Court, it has been held that as there are no words to negative the power of Congress to confer original jurisdiction on the inferior courts ordained and established by it, Congress has vested the jurisdiction in such cases in these inferior courts. There were some dicta in earlier cases which were adverse to this construction of the Constitution, but in the later case of Boss v. Preston,¹ after a full review of all of these decisions, the court adopted the view taken by Chief Justice Taney in the case of Giddings v. Crawford,² and held that the original jurisdiction given to the Supreme Court in cases of ambassadors is not exclusive of the jurisdiction which Congress may vest in the inferior courts of the United States, but that Congress can make such jurisdiction in the Federal courts exclusive of that in the State courts. So that it seems that the present state of the law upon this question is that the district courts of the United States and the Supreme Court have concurrent jurisdiction of "suits against ambassadors or other public ministers," or their domestics, or domestic servants, or against consuls or vice-consuls, and that, except as to consuls and vice-consuls, all jurisdiction in the Federal courts is exclusive of the jurisdiction in the State courts. The decision of Ames v. Kansas,³ in which Chief Justice Waite reviewed the decisions, is in accord with the decision in Boss v. Preston. Reference is made to these de-

It is further agreed that the circuit court of the United States, which has no jurisdiction of a suit against a consul, but has jurisdiction of a suit against an alien, may have jurisdiction of such, though the alien be a consul; and it seems, though the defendant does not plead to the jurisdiction, the court will inspect the record and dismiss the suit in the interest of the foreign government whose privileges are involved, and not in the mere personal interest of the defendant. This power of Congress to regulate the jurisdiction of the courts, except as expressly fixed by the Constitution itself, results from the several purposes mentioned, to wit: The power to constitute tribunals inferior to the Supreme Court,² and the clause which vests all judicial power in a Supreme Court and in such inferior courts as Congress may ordain and establish, taken in connection with the power to pass all laws necessary and proper to carry them into execution. It has been the purpose of the legislation of Congress from time to time, sanctioned by the decisions of the Supreme Court just cited, to use these large powers which have produced the results summarized in Boss v. Preston, supra, as to jurisdiction affecting these foreign officials. The purpose has been to retain, as far as possible, the jurisdiction of the Federal courts over all questions affecting the official representatives of foreign powers in the interest of the public peace, which would be jeopardized if the jurisdiction in these cases was left to the local State courts of the Union.

§ 370. The next clause to which attention will be directed is in these words: "to all cases of admiralty and maritime jurisdiction." By recurring to the powers of Congress, we

¹ United States v. Ortega, 11 Wheat. 467; United States v. Ravara, 2 Dall. 297; Davis v. Packard, 7 Pet 276; Cohens v. Virginia, 6 Wheat. 264; Osborne v. Black, 9 id.

738; Marbury v. Madison, 1 Cr. 137; R. S. U. S., secs. 563, 629, 711; Act of Feb. 18, 1875 (18 Stats. at Large, 318). ² Const U. S., Art. I, sec. 8, clause 9.

find (art. I, sec. 8, cls. 10 and 11) that Congress has power in respect to offenses committed on the high seas and against the law of nations, connected with the power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. These relate very largely to the rights of the United States in case of war, and to their rights in time of peace. It is well known that, by the rules of international law, captures upon the high seas are adjudicated only in the courts of prize in the country of the captor. That these adjudications should be left to any other courts than the courts of the United States would have been a blunder not to be attributed to the framers of the Constitution. Therefore, as under the term "cases in admiralty" are included all cases of prizes and the like, the propriety of vesting this branch of the admiralty jurisdiction in the exclusive jurisdiction of the United States courts is eminently proper. "All cases" are indicative of their purpose. Prize cases were within the exclusive jurisdiction of admiralty in England, and the clauses of the Constitution above referred to make the jurisdiction of the State courts in such cases out of the question. The Articles of Confederation¹ vested this jurisdiction in the Federal government, and the laws necessary and proper to carry into execution this judicial power as to admiralty make exclusive jurisdiction necessary and proper.²

But what other cases are implied in these words? There was great contention in England between the admiralty and common-law courts as to this jurisdiction, which was settled by the statutes of Richard II. and Edward III. A history of this contention may be seen in the dissenting opinion of Mr. Justice Campbell in The Magnolia.³ In the case of Waring v. Clarke⁴ the Supreme Court held that the admiralty

jurisdiction was not limited or to be interpreted by the English admiralty rules, and that a collision upon a river, as far as the tide ebbs and flows, though infra corpus comitatus, is within these terms in the Constitution; and this case was followed in The Lexington,¹ in St. John v. Payne,² and The New Jersey.³ The reasons for the constricted jurisdiction of admiralty under the influence of the statutes of Richard II. and Edward III., and under the potent influence of the opinions of Lord Coke, are stated with great force by Chief Justice Taney in his dissenting opinion in Taylor v. Carryl.⁴ This opinion of the Chief Justice was obviously intended as an answer to the dissent of Mr. Justice Campbell in The Magnolia, supra, and should be read in connection with that dissent in order to a full understanding of that subject.

In the important case of New Jersey Steam Navigation Co. v. Merchants' Bank,⁵ the Supreme Court, reviewing previous cases,⁶ held that when the subject-matter arose out of transactions upon the high seas or within tide, though within the body of the county, the jurisdiction was within admiralty. To this there was strong dissent, by the opinions of Justices Daniel and Woodbury. The drift of the decisions in these cases and others⁷ confines the jurisdiction to cases where the vessel was engaged in maritime commerce in tidal waters. But in The Genesee Chief⁸ the Supreme Court took a new departure, with an earnest dissenting opinion from Mr. Justice Daniel. The opinion of Mr. Chief Justice Taney in this case sustained the act of Congress of 1845.⁹ He held that the admiralty jurisdiction in England was confined to tidal waters, because their tidal and navigable waters were in

⁷ The Thomas Jefferson, 10 Wheat. 498; Steamer Orleans v. Ph�bus, 11 id. 175; The Santissima Trinidad, 7 id. 324.

substance synonymous, for all tidal waters were navigable, and none were navigable which were not tidal; but he held that the test of admiralty was not the character of the water, but the character of the stream; if it was navigable, whether it was fresh or tidal, admiralty jurisdiction attached. This opinion and this decision was the initial point of a series of decisions which has established as the law that the navigability of the stream, or of the water, is the characteristic from which arose the admiralty jurisdiction. This was followed immediately by Fretz v. Bull,¹ with the same dissent as in the case of The Magnolia, supra; the court made the same decision with the dissent of Justices Catron, Daniel and Campbell. In the case of De Lovio v. Boit,² Mr. Justice Story, in 1815, had indicated an opinion in favor of an enlargement of the admiralty jurisdiction; a decision which Mr. Justice Campbell declared was recognized as not law in the later case of Insurance Co. v. Younger.³ It was held, however, in two cases,⁴ that where the contract of affreightment and for repairs was as to a voyage of the vessel between two ports of the same State, the admiralty jurisdiction did not attach; but these decisions were disapproved in The Commerce,⁵ and the admiralty jurisdiction was upheld even as to the voyage between two ports of the same State. In The Lottawanna,⁶ Mr. Justice Bradley, for the court, sanctioned the decision in The Genesee Chief case, and held that the Constitution, by these words "admiralty and maritime jurisdiction," intended "to adopt the general system of maritime law which is familiar to lawyers and statesmen when the Constitution was adopted;" but the Constitution, he said, did not define this jurisdiction nor fix the limits between the local and maritime jurisdiction. This, he said, was a judicial question; and that while the court cannot make, but can only

⁵ 1 Black, 578. Accord: The Steamer St. Lawrence, id. 522. ⁶ 21 Wall. 558.

declare, the law, Congress can change it under the commerce power. To this decision there were two dissenting opinions. The term "navigable rivers" was held to mean those which are such in fact.¹ In The Hine v. Trevor the decision sustains The Genesee Chief, and upholds the admiralty jurisdiction in the district courts of the United States as exclusive of the State courts. In the case of The Scotland² it was held that the general maritime law was binding only so far as it was adopted in any particular country.

In Ex parte Boyer³ the admiralty jurisdiction was extended to the cases of the collision of tow-boats on a canal between two points in the State of Illinois.⁴ In The Alaska⁵ referring to The Harrisburg,⁶ it was held that no suit in admiralty could be maintained for the death of a person, unless Congress gives the remedy or it is given by a State. In the case of The Steamer Eclipse⁷ it was held that a court of admiralty cannot administer an equitable remedy. In In re Garnett⁸ the law of Congress creating a limited liability, in case of tort, was thus made a part of our maritime law, and in this case all the cases were reviewed and the decision was unanimous in its sanction of the Genesee Chief decision. The act of 1851, creating limited liability,⁹ is in accord with these decisions. The distinction between admiralty and maritime jurisdiction is thus stated by Judge Cooley, quoting Judge Story: "The first (that is, admiralty) respects acts or injuries done upon the high seas, where all nations claim common right and common jurisdiction; or acts or injuries done upon the coasts of the sea; or, as for these, acts or injuries done within the ebb and flow of the tide. The second (that is, maritime) respects contracts, claims and services purely maritime, and touching rights and duties apper-

taining to commerce and navigation. The former (that is, admiralty) is again divisible into two great branches � one embracing captures and questions of prize arising jure belli; the other embracing acts, torts and injuries strictly of civil cognizance, independent of belligerent operations."^l This quoted statement must be qualified so as to take in, under the decision of The Genesee Chief, the great lakes and their navigable waters, and the great rivers, even though their navigable course may be entirely within the limits of a single State; and in The Commerce² it was held that this jurisdiction had not depended on the Congressional power to regulate commerce, but upon the judicial power over cases of admiralty, as to which Congress can pass laws to carry it into execution. The Federal jurisdiction, therefore, includes cases of collision on navigable lakes or rivers; of vessels engaged in commerce between ports of the same State and occurring within the body of the county; and also contracts of affreightment, though to be carried out in the State where made.³

§ 371. From this rapid review it will be seen how extended, at this day, the admiralty jurisdiction has become, as compared with what it was in an earlier period of the government. This is due largely to the fact of the great extension of our commerce, foreign and domestic, and especially to the fact that our commerce upon the navigable fresh waters of the Union, the lakes and great rivers, has become so enormous as to have produced great inconvenience, if the admiralty jurisdiction had not been extended to commerce upon these fresh waters, and had been left to the courts of the States. The broad and sagacious opinion of Chief Justice Taney in the Genesee Chief Case widened the scope of admiralty jurisdiction without any detriment to the interests of commerce or the reserved jurisdiction of the State. This jurisdiction may be now said to embrace among others the follow-

ing cases: The case of salvage,¹ bottomry bonds,² seamen's wages,³ charter-party and affreightment of ship, cases of maritime injuries, and maritime liens.⁴ It is not necessary in this work to go into the principles of admiralty practice. This has been regulated by Congress, and rules under its legislation have been prescribed by the Supreme Court. Some cases may be referred to in the note.⁵ It may be well to state that as the power of Congress to legislate so as to vest the complete jurisdiction in admiralty in the courts of the United States is nearly connected with its power "to regulate commerce" between the States and with foreign nations, it has been held that Congress may pass laws regulating the mode of navigation by vessels engaged in such commerce, and the violation of such regulations would therefore become the subject of admiralty jurisdiction. The rules, therefore, prescribed for navigation are within the powers of Congress, and Congress may enact laws for the sale and mortgage of vessels, rendering them invalid as against bona fide purchasers unless duly registered at the custom-house, and making other regulations for the safety of passengers, and such statutes may be enforced in the admiralty courts.⁶ But though Congress may regulate the navigation of the waters of the United States, and the vessels employed therein may be subject to the admiralty jurisdiction, the ownership of the water and of the fish which it contains, and of the soil beneath, remains in the States.⁷ These State rights do not appertain to navigation and therefore are not subject to admiralty; nor can admiralty take cognizance where the damage is wholly on land, or to a bridge injured by a pass-

⁵ Phillips' Practice in the Federal Courts; also the rules prescribed in 3, 10, 13, 17 and 21, Howard's Reports. See also Allen v. Newberry,

⁶ Steamship Co. v. Manufacturing Co., 109 U. S. 578; Ex parte Boyer, id. 629; The Belfast, 7 Wall. 624.

⁷ United States v. Bevans, 3 Wheat. 336; McCready v. Virginia, 94 U. S. 391; Smith v. Maryland, 18 How. 71.

ing vessel, nor where a fire on board the ship is communicated to buildings near which she is moored.¹ But where damage is done to the ship by a bridge or other structure, or by defect in the dock, or from piles left in a stream, redress may be had for the ship in admiralty.² The jurisdiction of the admiralty is so far exclusive that no State or federal tribunal can take jurisdiction of a pure proceeding in rem.³ But the courts of common law or of equity may entertain a suit in personam, on a maritime contract, and execute the decree by attaching the vessel, or taking it in execution as in case of other chattels, but they cannot proceed against the vessel in rem, or affect it with a lien, except through their jurisdiction over the person of the owner.⁴ So under the Judiciary Act of 1789, which saves the right to a party to a suit at common law on any tort or contract, a party may institute suit in personam in the common-law court.⁵

§ 372. One question remains to be considered: How far, under the admiralty jurisdiction, can crimes be punished? In the case of R. v. Keyn⁶ the English court discussed the question whether a man could be tried in the Lord Admiral's court within the marine league of the English coast, and a majority of the court doubted whether by international law the marine league was a part of the territory of England, though by act of Parliament it might be made so. The minority held that it was within the territory of England. The only question considered in that case was as to the jurisdiction of the court which succeeded the Lord Admiral's jurisdiction, and it was held that the court had

² Railroad Co. v. Towboat Co., 23 How. 209; Leathers v. Blessing, 105 U. S. 626; Cope v. Dry Dock Co., 119 id. 625; Atlee v. Packet Co., 21 Wall. 389.

⁴ 24 Pa. St. 259, or S. C., Taylor v. Carryl, 20 How. 583; Leon v. Galceran, 11 Wall. 185.

⁵ Cases supra; also Schoonmaker v. Gilmore, 102 U. S. 114; Steamboat Co. v. Chase, 16 Wall. 522.

not jurisdiction of the case. The reasoning of Lord Chief Justice Cockburn was not satisfactory upon this point.

The decision of Lord Stowell in the Mud Islands Case¹ clearly held that the marine league on the shore of the Gulf of Mexico extended three miles beyond the Mud Islands, which were eight miles from the coast, and that a capture of the French vessel by a British man-of-war between the Mud Islands and the coast was clearly in neutral territory and void. The Parliament by law claimed the marine league for British territory, and gave criminal jurisdiction to the courts of crimes occurring therein. The doctrine of the marine league has never been doubted in the United States and has been recognized in numerous cases. If a murder occurs within any of the waters of the State, can it be prosecuted in the State court? In the leading case of United States v. Bevans,² the court, through Chief Justice Marshall, held that the grant of admiralty jurisdiction does not by any means involve a cession of the waters of the State to the United States, and that the admiralty courts cannot try a case of crime committed within the State or its waters. The murder by Bevans was aboard a man-of-war in Boston harbor, and was cognizable in the State court and not in admiralty. The Chief Justice said that, under the war-power, Congress might punish murder on board a man-of-war whenever it enacted a law to do so, but it had not done so, and therefore the State had jurisdiction. No cases can be found to the contrary. In the case of United States v. Coombs³ the defendant was punished for stealing from a wreck (property which was washed up on the land), but that was held to fall under the commerce power and not a case for admiralty; and in the late case of Manchester v. Massachusetts ⁴ (Buzzards' Bay Case), the decision and opinion of the court confirms these views, and sustains the State against the Federal jurisdiction.

The doctrine in Waring v. Clark,¹ as expounded by Justice Wayne, sustains our admiralty jurisdiction on the ground that the admiralty courts in England, despite the rights of prohibition by the common-law courts, exercised a larger jurisdiction than was defined by the statute of Richard II.; and besides, the colonies and the Congress of Confederation held the more ancient limits of admiralty jurisdiction, and did not confine it within the circumscribed boundaries of those acts of Parliament. But while admiralty attaches its jurisdiction in rem for collision according to place, and may be exclusive of the common-law courts, yet it cannot seize a vessel which is in possession of a sheriff under State process. In Taylor v. Carryl² the State courts had seized a vessel under a proceeding by foreign attachment, and a motion was pending for an order of sale. With this condition of things a libel was filed in admiralty for seaman's wages, and the marshal served the process upon the vessel, and the Supreme Court held that the State possession prevailed over the admiralty. In the opinion of Mr. Justice Campbell, speaking for the court, Judge Story's Commentaries on the Constitution,³ and a number of cases, are cited.⁴ Chief Justice Taney, with three other justices, strongly dissented.

It has been further held that the saving of the common-law remedy to parties, in the ninth section of the Judiciary Act of 1789, does not take away the admiralty jurisdiction in rem. It applies to common-law jurisdiction in personam.⁵ This distinction may reconcile the diverse views. The admiralty proceeds against the vessel itself. It is sued in admiralty, and to this extent the admiralty has exclusive jurisdiction; but another court may proceed in personam against the officers or master, and through this jurisdiction over the person affect the vessel itself, by execution, attachment or other lien.⁶

⁶ The Moses Taylor, supra; The Hine v. Trevor, 4 Wall. 556; The Glide, 167 U. S. 606.

§ 373. "To controversies to which the United States shall be a party." The word "cases," which had been subsequently used, is not displaced by the word "controversy." A distinction has been drawn between the two words: "cases" include civil and criminal judicial controversies, but "controversies" is applied only to civil cases.¹ Whether this be a true distinction or not may be doubted. The word "all," before "controversies," is omitted; perhaps in part because it was not intended.

The United States is not suable except with its own consent. This is the attribute of sovereignty in a single State, and for like] reasons in the United States. Of course, the United States are not suable in a State court; nor can the State court subordinate the authority of the United States to its jurisdiction.² If the United States has purchased property in a State merely as a proprietor, and not as a means of exercising their constitutional function, such property may be condemned by the State for streets, highways or public purposes, under its eminent domain, as the land of any other proprietor.³ But where Congress buys or condemns property for the purpose of exercising Federal functions, the property is not subject to State law for taxation or condemnation as aforesaid.⁴ But while it may not obstruct the Federal functions in respect to such property, unless it has ceded jurisdiction as provided under a former clause of the Constitution,⁵ Congress can exercise no legislative function over such property. It is subject to the general legislative power of the State, except such as will obstruct its use in performing Federal functions.⁶

The United States may sue as plaintiff in their own or the State courts, or in the courts of a foreign country.⁷ As above

¹ Tucker's Blackstone, Appen., 420-21; Chisholm v. Georgia, 2 Dall. 419, 431-32; Story's Commentaries, sec. 1168, note 2.

stated the United States cannot be sued in a United States court or elsewhere but by their consent. So that this clause is limited to cases where the United States is a party plaintiff. A remarkable case may now be referred to where a suit may be brought by a claimant of property held by the officers of the United States for the government. The officer, who is locum tenens, cannot plead that the United States are sued in his person, where the holding for the United States was without authority of law, and especially where it is unconstitutional.¹ This case was followed in a number of cases in respect to the suing of a State, to which reference will be had hereafter; the doctrine being that no officer can assert that he defends the State right or the right of the United States involved in his own defensive holding, where the State or the United States claim to hold by a title which was against law and unconstitutional. Such was the case in Lee v. United States, supra. The purchasers of the property of the plaintiff at a tax sale by an agent for the United States was held to be null and void because the sale was contrary to the Constitution and to the law. Therefore the United States could acquire no valid title under such a sale, and the officer of the United States could not protect the property from the claim of the true owner by alleging that the United States were the real defendants. They could not be the real defendants because they could not have acquired the title, which it was unconstitutional for them to acquire. In that case the United States by their counsel intervened and moved the dismissal of the suit because it was in fact against the United States. The court overruled the motion, gave judgment against the tenant who held for the United States, and the Supreme Court affirmed it. The opinion of the court was elaborate and reviews all the cases. Except in this class of cases the United States cannot be sued without their consent, as has already been stated; but in the year 1854 an act was passed creating what is known as the Court of Claims, the jurisdiction of which has been

considerably enlarged by an act passed in 1887. In this court the United States may be sued upon a contractual claim which might be asserted either at law or in equity, and very large jurisdiction was given to the court for inquiring into claims that are finally submitted to Congress. These statutes need not be critically commented upon. In the last act mentioned, i. e. in 1887, jurisdiction was given also to the circuit courts of the United States in a limited class of cases to allow suit for claims by private parties against the United States. When these courts render judgments in these cases against the United States there is no mode of enforcing them, and the judgment is of no avail until Congress appropriates money to pay it, which is usually done.

§ 374. The next clause is, "to controversies between two or more States." It will be noted that it does not say to "all" controversies, and therefore there is a class of which the Federal courts have no jurisdiction. The reason for establishing this jurisdiction is very obvious and is stated in the Federalist with great force.¹ The authority to settle disputes between the States concerning boundaries, jurisdiction, or any other cases whatsoever, was vested by the Articles of Confederation in Congress, but this was a very cumbrous mode of adjudicating them. What better or more appropriate tribunal for adjudicating controversies between the States than the Supreme Court? Colonial disputes had a precedent in the case of Penn v. Lord Baltimore.² Since the Constitution went into operation many cases of controversies between the States have been before the Supreme Court, and reference will be made to them.³ These cases hold that questions of boundary, territorial right and property rights of all kinds are proper for this jurisdiction; but it has been held in the noted case of Commonwealth of Kentucky

³ Rhode Island v. Massachusetts, 12 Pet. 757; Missouri v. Iowa, 7 How. 660; Florida v. Georgia, 17 id. 478;

Alabama v. Georgia, 23 id. 505; Virginia v. West Virginia, 11 Wall. 89; Tennessee v. Virginia, 158 U. S. 257; Maryland v. West Virginia (now pending).

v. Dennison,¹ upon the refusal of the Governor of Ohio to extradite a criminal upon the demand of the State of Kentucky, that at the suit of Kentucky the constitutional duty of the State of Ohio could not be enforced, and that it was a political issue between the States and not one for judicial decision.

§ 375. The next clause is, "between a State and citizens of another State." It is obvious that it was well to extend the jurisdiction of the Federal courts to such cases, but the word "all" was omitted so that the State may sue a citizen of another State in the Federal court, or in the court of the State of which the defendant is a citizen. The Federalist²gives a satisfactory exposition of the reasons for this. The court of a citizen defendant might not be an impartial arbiter between the plaintiff State and its citizen. Impartiality and justice would more reasonably be expected from the Federal tribunals. This clause gave rise to a noted controversy. It gave the Federal court jurisdiction of controversies between a State and the citizens of another State. That is clear enough where the State is plaintiff; but did the clause mean that the citizen of another State might sue the State in a United States court? In the Federalist, above referred to, Mr. Hamilton said that this construction had been raised as an objection to the Constitution, and he undertook to controvert it by saying that it was impossible fairly to construe the Constitution to mean that a citizen as plaintiff could be party to a controversy with a State, and contended that it was contrary to the principle that a sovereign could not be sued without its consent. Despite this strong statement of the Federalist, in the celebrated case of Chisholm v. Georgia³ the Supreme Court decided that Chisholm, a citizen of North Carolina, could sue the State of Georgia upon a money claim in the Supreme Court. The decision was rendered on the 19th of February, 1793, and on the 21st of February, so great was the alarm produced by the decision, an amend-

ment was proposed to the Constitution in Congress which would render nugatory that decision. The history of the proceedings which eventuated in the adoption of the eleventh amendment to the Federal Constitution is given in a number of cases in the Supreme Court.¹

This amendment must therefore be considered with the clause we are now commenting on. It is in these words: "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subject of any foreign State." As part of the history of this clause the original proposition did not contain the words "be construed to." Had it been adopted in its original form, it would have been a future limitation to the use of the judicial power. With the insertion of the words "be construed to" it had retroactive effect by condemning the construction which had been given the original Constitution by the decision in Chisholm v. Geogia, supra, when the amendment was called to the attention of the Supreme Court.² A number of cases were dismissed from the docket because, by virtue of the amendment, the jurisdiction which had been assumed was taken away. The construction of this amendment has been the subject of a good deal of controversy, to which attention must now be called.

§ 376. First, a citizen of another State or of a foreign nation cannot sue a State in the courts of the United States, by reason of this amendment.

Second, as the eleventh amendment did not in terms forbid a citizen to sue his own State, it was contended that he could do so, because the prohibition of the eleventh amendment did

¹ Cohens v. Virginia, 6 Wheat. 408; also Haygood v. Southern, 117 U. S. 52; In re Ayres, 123 id. 443; North Carolina v. Temple, 134 id. 130; In re Neagle, 135 id. 1-23; Antoni v. Greenhow, 107 id. 711; Coster v. Greenhow, 114 id. 317; New

Hampshire v. Louisiana, 108 id. 76; United States v. Texas, 143 id. 621; and especially the author's statement arguendo In re Ayres, 123 U. S. 443; Ex parte Wilson, 114 id. 417. ² Hollingsworth v. Virginia, 3 Dall. 378.

not reach him. But the fallacy of this contention is obvious from the fact that the original Constitution did not authorize a suit in the United States courts between a State and its own citizen, while it did authorize suits between a State and citizens of other States. There is no occasion, therefore, for the eleventh amendment to prohibit a construction of the original Constitution allowing a suit between the State and its own citizen. So the Supreme Court in two cases has decided that a citizen cannot sue his own State in the courts of the United States.¹

Third, this amendment leaves the original Constitution unchanged as to a suit between two or more States, and, as we have already seen, the jurisdiction of the Supreme Court is fully recognized as to controversies in respect to boundaries and the like brought by one State against another.² Furthermore, it has been held that under the original terms of the Constitution, a controversy between the United States and a State is within the jurisdiction of the United States courts. This has been so decided where the United States was plaintiff under the original Constitution, to which the eleventh amendment as to such cases does not apply.³ It has not yet been decided whether in such a controversy the State may be a plaintiff. An Indian tribe cannot sue a State, because the tribe is not a State.⁴ Nor can the District of Columbia or a Territory sue a State, because neither of these is a State; and so also it is a well-settled doctrine that a resident of a Territory or of the District is not a citizen of the State who can sue the citizen of one of the States in the United States court.⁵ The form of process against a State when sued has been adjudicated in the cases already referred to, but especially in The State of New Jersey v. The State of New York.⁶

² Florida v. Georgia, 17 How. 478; Virginia v. West Virginia, 11 Wall. 39, and other cases cited supra.

Fourth, a State may, by the original Constitution, sue a citizen of another State, and citizens and subjects of foreign States, in the United States courts.

Fifth, a bank or other corporation, wherein a State is one of the corporators, or is sole corporator, may, however, be sued by a citizen of another State. The State doffs its sovereignty when it becomes a stockholder, and the corporation is a being distinct from its corporators. The suit in such cases is therefore not against the State, but against the corporation and legal entity distinct from its corporators.¹ The opinion of Mr. Justice Curtis in Curran v. Bank of Arkansas²expounds this fully.

Sixth, but where a State prosecutes a citizen for a crime once, and convicts him, the citizen may appeal from the highest State court to the Supreme Court of the United States under the twenty-fifth section of the Judiciary Act already mentioned. It was contended in the case of Cohens v. Virginia³ that this appeal by the convict was a suit against the State, but Chief Justice Marshall, in that famous case, made the distinction that, while the citizen could not assert a claim against the State and get judgment for it, he might on appeal get a judgment reversed which the State had unconstitutionally obtained against him. The appeal simply brought the case of the State against him for review in the appellate court, but in that case it was held that the appeal to the Supreme Court only lay after the highest appellate court in the State had decided against the right of the citizen. It is worthy of note, however, that while the court in that case decided it had jurisdiction to reverse, yet upon the merits it decided to affirm. The same doctrine will hold where the State in a civil suit obtains a judgment against a citizen contrary to his claim of right under the Constitution, laws or treaties of the United States, and this by virtue of the twenty-fifth section of the Judiciary Act.

¹ Brisooe v. Bank of Ky., 11 Pet 692: Curran v. Arkansas, 15 How. 304; Bushnell v. Kennedy, 9 Wall. 387.

Seventh. We come now to an important question. Can the eleventh amendment be evaded in its operation by suing the officers, boards or other functionaries of the State, and not suing the State by them? This question has been the subject of great and learned controversy. In the case of Osborne v. Bank of United States^l the court said that the eleventh amendment did not apply unless the State was made a party defendant on the record; but in a later case, to which reference will be made, that doctrine has been clearly overruled.² In Louisiana v. Jumel, supra, a board of the State of Louisiana held some funds which, by prior obligations of the State, the board was to hold in trust for their payment. The State legislature afterwards enacted that the board should not pay out any of those funds for these special creditors. The creditors thereupon sued the board to compel the payment of their obligations out of that fund, but the court held that the board was really the State � the authority through which the State held these funds for creditors, � and that to make the board pay the creditors with these funds was equivalent to making the State do so. Therefore the Supreme Court held that it was still a suit against the State; that the State was not a party on the record; and gave judgment for the State. The same doctrine was affirmed in the later cases above cited. In the leading case of In re Ayres³ the State of Virginia had directed its Attorney-General to sue delinquent tax-payers where they had tendered tax-receivable coupons in payment of their taxes, which the Supreme Court decided, in Antonio v. Greenhow⁴ and Poindexter v. Greenhow,⁵ that the State was bound to receive. The collecting officers of the State had been forbidden by the law of Virginia to receive these coupons in payment of taxes, and the Attorney-General of

² Louisiana v. Jumel, 107 U. S. 711; Cunningham v. Railroad Co., 109 id. 446; Hagood v. Southern, 117 id. 52.

the State was directed to sue any such tax-payer, in which suit the tax-payer was allowed to plead the tender as the discharge of his obligation. One of the large creditors of the State of Virginia filed a bill stating that the coupons upon the bonds of the State were made unsalable by this legislation of the State, and praying an injunction against the Attorney-General and other attorneys for the Commonwealth forbidding them to bring the suits which the law of the Commonwealth had ordered. The Attorney-General and others proceeded to sue despite the injunction order. The judge of the United States court thereupon, upon proper process against them for contempt, fined and imprisoned them. They brought a writ of habeas corpus, issued from the Supreme Court, for their release from custody, upon the ground that these proceedings were virtually an injunction against the State forbidding its suing for its taxes, and this despite the fact that the State was not made a party on the record. The Supreme Court held, in a learned opinion of Mr. Justice Matthews, that the State had a constitutional right to sue; and as it could sue only by its officers, an injunction against the officers was an injunction against the State, and that virtually the whole proceeding was a suit against the State of Virginia. The officers were released under the habeas corpus. This latter case was followed by that of McGahey v. Virginia¹ and Pennoyer v. McConnaughy.² In the last case Mr. Justice Lamar quoted from the decision of Mr. Justice Bradley in McGahey v. Virginia, in which there was a summary of the propositions established by previous decisions, the third of which propositions is in these words: "That no proceedings can be instituted by any holder of said bonds or coupons against the Commonwealth of Virginia, either directly by suit against the Commonwealth by name, or indirectly against her executive officers, to control them in the exercise of their official functions as agents of the State." On the other hand, it has been distinctly held that where the State by its officer seizes the

property of a citizen contrary to his right claimed under the Constitution, such citizen may sue the officer in trespass or other action, and the officer cannot plead, in justification of his action, that it was authorized by law and therefore is virtually the action of the State, because the State cannot authorize an act which by the Constitution it is forbidden to do, and that such citizen may sue such officer to recover his property, or damages for taking it, or by injunction to prevent the taking of it, and such suit will not be contrary to the eleventh amendment, because the officer cannot make his act the act of the State when the State, by the Constitution, is forbidden to do the act. The cases on this subject, besides those already cited, will be referred to in a note.¹The decisions cited in the note hold that no suit against a State or its officers is allowed by the eleventh amendment to compel any affirmative action against the State or its officers. The State cannot be so enforced; but where the State through its officers is taking affirmative action against a citizen, contrary to his constitutional right, he may either prevent it by injunction or redress it by an action against the officer, and, because the officer is without constitutional authority from the State to do the act, judgment will be allowed against the officer. It will be noted that this is substantially the same principle upon which the decision in Lee v. United States,"² heretofore referred to, rested. In both cases the officer of the State was the State, as far as any suit against him was concerned, where he performs the duties which the State has constitutional power to impose upon him; but where the State has no such authority to impose the duty, his act is defenseless under the shield of the State, and he is liable for it as an individual.

¹ Coupon Cases, 114 U. S. 269; Cunningham v. Railroad Co., 109 id. 453; Hagood v. Southern, 117 id. 52-70; Davis v. Gray, 16 Wall. 203; Tomlinson v. Branch, 15 id. 460; Litchfield v. Webster Co., 101 U. S. 773; Board of Liquidation v. McComb, 92 id. 531. All of these decisions

are fully reviewed by Justice Bradley and Justice Lamar in the cases referred to. McGahey v. Virginia, 135 U. S. 662; Pennoyer v. McConnaughy, 140 id. 1; Fitts et al. v. MoGhee et al., 172 id. 516. ² 106 U. S. 196.

Eighth. A creditor of a State, as we have seen, cannot sue the State for the debt under the eleventh amendment. Can he assign it to his own State with power to do so for him, and thus give jurisdiction to the Supreme Court, because it is a controversy between two States? This was attempted in recent cases. The court will look to the real parties to the suit, and in the cases of New Hampshire v. Louisiana and New York v. Louisiana¹ the court found that the suits were brought by the plaintiff States for and in behalf of its citizens, and the jurisdiction was denied as being in effect contrary to the eleventh amendment, because by a suit of the citizen against a State.

Ninth. Can a foreign State sue a State of this Union in the United States court? A foreign State may sue in the Supreme Court.² It may sue citizens and corporations of the United States. Can it sue a State? This has never been decided, but from the terms of the original Constitution it gives jurisdiction to controversies between a State and foreign States, citizens or subjects against a State; and as the eleventh amendment forbids a suit by foreign citizens against a State, but does not forbid a suit by a foreign State against a State, it would seem that the original Constitution stands unaffected by the eleventh amendment as to a controversy between a State of the Union and a foreign State, whichever may be plaintiff or defendant. But it has been decided that the United States may only be sued, as by its law it is permitted, in the Court of Claims.

§ 377. In controversies between a State and citizens of another State, or between citizens of different States, etc., the question arises, Who is a citizen of a State within the meaning of these clauses of the Constitution? A citizen may be a citizen of a State, as to jurisdiction, when he resides in that State.³ A resident of a Territory or of the District of Columbia is not a citizen of a State and cannot sue or be sued in the United States court.⁴ He must sue in

³ Gassies v. Ballou, 6 Pet. 761; Shelton v. Tiffin, 6 How. 163. ⁴ Hepburn v. Ellzey, 2 Cr. 445-48.

a State court, or be sued in the court of the Territory or in the court of the District of Columbia. An alien, though he has declared his intention to become a citizen, may sue as such in the United States court.¹ A much-controverted question here arises: Is a corporation created by a State a citizen within the meaning of these jurisdictional clauses. It is very obvious that a corporation is not a citizen in the true primal sense of that term. It is a metaphysical entity, a creature of the law, distinct from the personality of all its corporators. A citizen, in the true sense of the term, is a human being, with personal rights and capable of personal privileges and immunities; but it was held in an early case that the reason of the jurisdictional clause of the Constitution applied to the cases of the corporations of different States. The reason that jurisdiction was given between citizens of different States to the United States courts was the apprehension that the State courts, in such controversies, might not be as impartial as a court of the United States. The State court depends for its authority upon the State creating it; its environments consist of the nature, feeling and sympathies of the people of the State. A United States court is created by the Constitution of the Union, and in its independence of State authority and separation from State influence would be a better tribunal for the trial of questions in which the rights of the stranger were involved. This reason for the jurisdiction where the parties were citizens is stronger where one of the parties is a corporation; if the stranger citizen might be prejudiced in a State court, a fortiori might a stranger corporation be. Then again it was easy to see that the corporation, which was a being of the law and not a personality, yet represented persons who would likely be citizens of the State which created it. While therefore in form it was a corporation, a legal entity, and not a person representing persons who were citizens of the States which created it, the reason of the rule led to the early decisions that a corporation of a State was to be regarded, for

jurisdictional purposes, as if it were the body of the corporators who were citizens of the same State.

This view was strongly stated by Chief Justice Marshall in the case of Bank of the United States v. Deveaux,¹ in which, referring to the case of Mayor, etc. v. Wood,² the judges declared they could look beyond the corporation name and notice the individual. It was decided that on a question of jurisdiction in a suit by the corporation, they could look to the character of the persons composing it. This leading case was followed by others, in which it was held that the court would presume that the corporators were all citizens of the State which created the corporation, and in a later case it was held that this presumption was one which the court would not permit to be rebutted. The cases are referred to in a note.³ In Muller v. Dows⁴ the court said that a corporation was in fact not a citizen at all, but, as representing those who were, the jurisdictional question was within the reason of the provision of the Constitution. The conclusiveness of the presumption was first declared in Railroad Co. v. Letson.⁵ This was followed in Bundle v. Canal Co.⁶ and Northern Ind. R. R. Co. v. Michigan Central R. R. Co.⁷ Though this view was opposed in the court and there was strong and persistent dissent, it may now be regarded as settled in favor of the jurisdiction, which presumes a corporation to be a citizen of the State which created it, despite the fact that all of its corporators may not be. It may be added that, where the corporation is a municipal corporation, this principle is properly conclusive, because all its inhabitants are citizens of the State of which the municipality was a part, and so as to eleemosynary corporations.

³ Marshall v. B. & O. R. R. Co., 16 How. 316; Ohio & Miss. R. R, v. Wheeler, 1 Black, 286; Railroad Co. v. Whitton, 13 Wall. 270; Louisville R. R. v. Letson, 2 How. 497; Robertson v. Cease, 97 U. S. 646: Kansas

Pacific R. R. Co. v. Atchison, T. & S. F. R. R. Co., 112 id. 414 See also Railway v. Arnaud, 16 L. J. (N. S.) C. L. 50.

We are justified in saying that while as an original question the rule treating a corporation as a citizen of the State which created it, as the result of the conclusive presumption above referred to, seems to stretch the meaning of the Constitution beyond its legitimate meaning according to its letter, yet, as it accords with the spirit of the Constitution, the rule may be regarded as not an injurious construction of the jurisdictional power of the United States court, and therefore as one that may be readily acquiesced in.

There is involved in the question just considered this additional rule: Under this clause jurisdiction over controversies between a State and citizens of another State was given. The force of the preposition "between" has been held to require that all the plaintiffs must be citizens of different States from all the defendants, and that if any plaintiff be a citizen of the same State with any defendant it is not a suit between citizens of different States, but quoad these parties between citizens of the same State. Hence the necessity of the conclusive presumption made in the cases of corporations as to the citizenship of their corporators. As we shall see more distinctly hereafter, the Supreme Court has held that the jurisdiction of the United States courts is a limited one, and that therefore, in every case, it must appear on the record itself that the Federal jurisdiction attaches. Hence it is a rule of practice in the Federal courts for the proceedings of the plaintiff to show that all of the plaintiffs are citizens of different States from all the defendants, and if this does not appear the declaration or bill is demurrable; and even where not demurred to, the court will look into the proceedings, even in an appellate court, and refuse to give judgment or decree where the record does not show the jurisdiction. In other words, they hold that, without this jurisdiction appearing on the record, the suit is coram non judice.¹

§ 378. In the case of Scott v. Sanford¹ it was decided that a negro, no matter where he resided, was not a citizen of the United States, capable of suing in a United States court; but now, by the fourteenth amendment to the Constitution, members of the negro race are citizens of the United States and of the State wherein they reside. So that citizenship being established, the question of the residence of the party is the main question,² and it must be the status of the party at the commencement of the suit.³ But as Congress has the right to establish and ordain the inferior courts, it has also the power to define their jurisdiction, so that the act of Congress provides that no assignee of a chose in action, whatever his citizenship, can sue in a United States court, unless suit could have been brought in that court had no assignment been made.⁴ Though the Constitution has defined the limits of the judicial power, it has not prescribed, but has left to Congress to prescribe, the amount of the jurisdiction which shall be vested in the courts.⁵

As already said, the citizenship, to get jurisdiction of the parties plaintiff and defendant, must be expressly averred, or the facts which constitute it must be set forth.⁶ This will suffice upon all of the clauses which relate to the parties being citizens of different States; and as to what is a State, as a party, within the meaning of the Constitution, it means a State of the Union. One of these clauses is peculiar and requires a word of explanation. The Federal jurisdiction extends to cases between citizens of the same State claiming lands under grants of different States. The decision of such cases, where the power of different States to convey title was involved, is for reasons already stated proper to be left to the jurisdiction of a court having no connection with either State, but established under the Con-

³ Connelly v. Taylor, 2 Pet. 556; Gassies v. Ballou, 6 id. 761; Shelton v. Tiffin, 6 How. 163.

⁵ Turner v. Bank, 4 Wall. 10; McIntyre v. Wood, 7 Cr. 506; Kendall v. United States, 12 Pet 616; Cary v. Peters, 3 How. 245.

stitution of the United States. Cases of this kind have occurred and are within this jurisdiction, wherever the parties claim under grants made by the different States.¹

The last clause to be noticed gives jurisdiction "to controversies between a State, or the citizens thereof, and foreign States, citizens, or subjects."² The eleventh amendment, as we have seen, excludes from the operation of this clause all suits at law or in equity commenced or prosecuted against one of the United States by citizens of another State, or subjects of any foreign State. So that while as against a State as defendant no suit can be brought by a citizen of another State, or citizens or subjects of any foreign State, the original clause remains unchanged as to a suit brought against a State by a foreign State. As to this it would seem that the foreign State may sue a State of the Union in the United States court. In any suit brought, however, by a foreign citizen or subject against citizens of any State, the alien has the right to sue, whether he sue in his own capacity or as trustee, if he have a substantive interest as trustee;³ and if the nominal plaintiff, although a citizen, sue for the use of a citizen, the case is within the jurisdiction.⁴ A foreign corporation is an alien for the purposes of suit.⁵ The opposite party must be a citizen, and the alienage of the plaintiff and citizenship of the defendant must appear from the record.⁶ A mere declaration of intent to become a citizen, as it does not make him a citizen, leaves him in the condition of alienage, and he may sue under this clause a citizen of a State.⁷

§ 379. The next clause has already been referred to, but further comment is necessary. While this clause gives the

⁷ Beard v. Federy, 3 Wall. 478; Jones v. McMasters, 20 How. 8; Lanfear v. Hensley, 4 Wall. 209; Semple v. Hagar, id. 436.

Supreme Court original jurisdiction in cases of ambassadors, and those to which a State is a party, the question has arisen: Is this original jurisdiction which is conferred on the Supreme Court exclusive, or may it be conferred on the inferior courts which Congress may establish? Some diversity of decisions has occurred upon this question. In United States v. Ravara¹ the jurisdiction of the inferior court was sustained. The contrary has been intimated by the Supreme Court in several cases,² but the late decisions already referred to of Boss v. Preston³ and Ames v. Kansas,⁴ and the cases cited therein, settled this question against the exclusiveness of the admiralty jurisdiction. It is clear that Congress can confer on the Supreme Court no other original jurisdiction than the Constitution has vested in it,⁵ but it may confer upon inferior courts a concurrent jurisdiction with the Supreme Court as to the cases in which it has original jurisdiction, and then confer on the Supreme Court the appellate jurisdiction from the judgment of the inferior courts in such cases. But it must be observed that such appellate jurisdiction in those cases does not arise from the nature of the parties, but from the nature of the case � from the subject-matter of litigation. The clause then provides: "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." This appellate jurisdiction of the Supreme Court then embraces all other subjects of jurisdiction set forth in the first clause of this second section, except those in which, as already seen, it has original jurisdiction.

An interesting question, already referred to, may now be considered further. Does the appellate jurisdiction of the Supreme Court reach to judgments of the State courts as well

as to those of the inferior United States courts? The reasoning of the Supreme Court in the leading cases of Martin v. Hunter, supra, and in Cohens v. Virginia,¹ is very strong to show that, unless the appellate jurisdiction extended to the judgments of the State courts, it would become necessary, where the State court had jurisdiction of a case within the judicial powers given by the Constitution to the United States courts, to remove the cases at once from the State courts into the United States courts for trial. In the language of the court in the case of Martin v. Hunter,² supra, this would be the case "not only when the casus f�deris should arise directly, but when it should arise incidentally, in cases pending in State courts." It is obvious that such a construction would necessitate a great abridgment of State jurisdiction in the primary stages of the litigation, and a need for a constant removal from the State to the Federal courts, even in the midst of a trial, when the Federal question first emerged. Congress, therefore, has the discretion to prescribe the jurisdiction of the inferior Federal courts, and it was thought best to leave a large concurrent jurisdiction to the State and Federal courts in many cases, and to bring to final review by the Supreme Court the judgments of the State courts in cases within the legitimate jurisdiction of the Federal judiciary. It has been already stated³ that this appellate jurisdiction from the judgments of State courts was vigorously contested in the case of Hunter v. Martin,⁴ but for eighty years the contest has ceased, and the appellate jurisdiction of the Supreme Court to the judgments of State courts has been acquiesced in universally; and it is best that it should be so, rather than to make necessary the exercise of the power, which unquestionably existed, to remove the case from the State court to the inferior Federal court, in order that an appeal from the judgment of the Federal court to the Supreme Court might insure a final decision by the

latter upon all questions of Federal jurisdiction. In some way it is obvious that this final resort to the Supreme Court on all questions of Federal jurisdiction should be secured in order to a uniformity of operation of the laws of the United States and treaties made under their authority in all of the States of the Union.

Under the terms of this important section, Congress may establish courts inferior to the Supreme Court and give exclusive jurisdiction to these courts in some of the cases of Federal jurisdiction therein mentioned; e. g., if it would be proper, give this exclusive jurisdiction in all cases to which the United States is a party, and in cases of prize, in some of which the Constitution itself requires that the jurisdiction should be exclusive.¹ So it has been said by the Supreme Court in the case of United States v. Bevans,² that Congress might give the Federal courts jurisdiction of crimes committed on a public man-of-war of the United States.

§ 380. Another question has arisen: Can Congress vest in the State courts any part of the judicial power of the United States? This has been intimated by the Federalist.³ In Martin v. Hunter, supra, it was denied,⁴ and this would seem to be the better opinion. It is true, the State courts having had jurisdiction, prior to the adoption of the Constitution, of a large number of cases which are within the Federal jurisdiction under the Constitution, may still continue to exercise that jurisdiction; but that is very different from the Congress having power to vest in the State courts any part of the jurisdiction which the Constitution has vested in the Federal judiciary. It is true that the State courts may enforce, by judicial action, rights secured to a party under the Constitution and laws of the United States. According to this, it has been held that a State court may administer

¹ Martin v. Hunter, supra; Cohens v. Virginia, supra; Story's Commentaries, sec. 1748; 1 Kent, lecture 18; 1 Tucker's Blackstone, Appen., 181, 183; Georgia v. Madrazo, 1 Pet. 128;

the naturalization laws as well as the Federal courts,¹ and this has been done in other cases.² Can either State or Federal court interfere with the other in the exercise of their respective jurisdiction? It has been held with great consistency that these two systems of courts are independent and complete within their respective spheres, and that neither can intrude upon the action of the other. By an act of Congress in 1793, the United States courts are forbidden to enjoin proceedings in the State courts.³

On the other hand, the State court and State cannot interfere with the proceedings and judgments of the United States courts.⁴ The cases herewith cited are, however, cases where the State and Federal courts have concurrent jurisdiction; but where the State court is proceeding in a matter as to which a Federal court has exclusive or paramount jurisdiction, it is otherwise. Thus, in an admiralty proceeding, a monition may issue to a party proceeding in a State court to present his claim in the admiralty court in order to a complete remedy, in rem, between all the parties.⁵ And where a valid order of removal of a case from a State court to a Federal court is made, and the State, court still proceeds, it has been said that an injunction will issue from the Federal court to the State court;⁶ but the better rule has been established that the vindication of the rightful jurisdiction of the Federal court, under the order of removal, will be left to an appeal from both courts to the Supreme Court, where the judgment of a State court, if the order of removal is valid,

² Claflin v. Houseman, 93 U. S. 136; United States v. Jones, 109 id. 613; Ex parte McNeil, 13 Wall. 236; Illinois v. Delafield, 8 Paige, 527; Delafield v. Illinois, 2 Hill, 159; Teal v. Felton, 12 How. 292.

³ Ex parte Dorr, 3 How. 103; Taylor v. Carryl, 20 id. 596; Leroux v. Hudson, 109 U. S. 469; Haines v. Carpenter, 91 id. 254; Dial v. Rey-

⁴ McKim v. Voorhies, 7 Cr. 279; United States v. Peters, 5 id. 115; United States v. Wilson, 8 Wheat. 253; Wayman v. Southard, 10 id. 21; Bank of United States v. Halstead, 10 id. 51.

will be wholly reversed, and the judgment of the Federal court in such cases will be affirmed; or where the order of removal is invalid the Supreme Court will reverse its action.¹

So the United States courts, sitting in bankruptcy, may enjoin a State court from impairing the right of the assignee in bankruptcy or distributing the assets of the bankrupt by its order.² But in such a case as this it will not interfere with the rightful jurisdiction of the State court as to liens upon the bankrupt's estate prior to the bankrupt proceedings.³ In cases, therefore, of concurrent and co-ordinate jurisdiction, the court first having possession must be allowed to proceed without interference by its concurrent rival.⁴

§ 381. Some other points may be considered. When the United States courts take jurisdiction of a case on account of the character of the parties thereto, they administer the laws of the State as the State courts would do; they recognize the common law and the statute law of the State and the decisions of the State courts, on its own Constitution and laws, on questions as to land or other property. As to these they hold the State courts to be the final arbiters for the interpretation of its laws in their application to controversies, property contracts and torts; for the Federal courts have not jurisdiction of such cases on account of subject-matter, but only incidentally on account of subject-matter, because of the character of the parties. It would destroy the uniformity of the operation of State laws if Federal courts departed from the precedence of State courts in their own decisions.⁵If the State decisions are at variance, the United States court will follow the last-settled adjudication of the highest State

road v. Railroad Co., 20 Wall. 137; Townsend v. Todd, 91 U. S. 452; Elmwood v. Marcy, 92 id. 259; Railroad Co. v. Georgia, 98 id. 359; Walker v. Harbor Commissioners, 17 Wall. 648; Shelby v. Guy, 11 Wheat. 361; Bucher v. Cheshire R. R. Co., 125 U. S. 555.

court;¹ and this is in accordance with the provision of the statute of the United States,² which in terms provides: "The laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decisions in trials at common law in the courts of the United States in cases where they apply." But this rule and this statute will not apply where the State decision is on a question of which, by the Constitution of the United States, the Federal judiciary has the final decision.³ Nor will it apply to questions not regulated by statute, but of general law, such as the law of negotiable paper, insurance, and the like. These questions depend on principles of general law, and not on local statutes.⁴ Nor does it apply where the State statute is in the matter of a contract and the State law undertakes to impair its validity. Such a case, as we shall see, is a case arising under the Constitution of the United States, which forbids a State to impair the obligation of a contract.⁵ In Bucher v. Cheshire R. R. Co., supra, the court said that the statute of the United States applied to trials at common law, but that the rule did not apply to cases in admiralty or in equity, nor to criminal offenses against the United States; but the decision of its highest court, as to the Constitution and statutes of a State, was regarded as part of the Constitution and statute of the State and binding upon the courts of the United States.⁶ In the case of Burgess v. Seligman⁷ the whole sub-

¹ Green v. Neal, 6 Pet. 291; Suydam v. Williamson, 24 How. 427; Fairfield v. Gallatin, 100 U. S. 47.

³ State Bank v. Knoop, 16 How. 369; Jefferson Branch Bank v. Skelly, 1 Black, 436.

⁴ Chicago v. Robbins, 2 Black, 418; Boyce v. Tabb, 18 Wall. 546; Venice v. Murdock, 92 U. S. 494.

678; Kring v. Missouri, 107 U. S. 221; Virginia Coupon Cases. 114 id. 269; McGahey v. Virginia, 135 id. 662.

⁶ Leffingwell v. Warren. 2 Black, 599; Luther v. Borden, 7 How. 1; Post v. Supervisors, 105 U. S. 667. And that it also applies to rules of evidence, see Ex parte Fisk, 113 U. S. 713.

ject has been ably reviewed, and in the case of Railroad Co. v. Putnam it was held that the power of a court of the United States in charging a jury was not restrained by the State statute forbidding judges to express an opinion on the facts, citing Nudd v. Burrows;¹ and in Peters v. Bain² the Supreme Court accepted the construction given to a Virginia statute by the highest court of that State as controlling its decision. In that case the decision of Waite, C. J., in the circuit court of the United States, and the opinion of Chief Justice Fuller fully sustain the propositions stated. In all these cases the Federal courts differ from the decisions of the State courts as to subjects clearly within State jurisdiction, and e contra State courts differ from those of the United States as to those in the Federal jurisdiction. This is according to well-recognized rules of judicial comity.

§ 382. Can a State court take jurisdiction of a case for enforcing a right arising under the Constitution of the United States or a law of the United States? The English courts enforce in the domestic forum a right arising under foreign law.³ The forum of trial will regard the foreign law in its decision of the case.⁴ The Constitution and the laws of the United States are the laws of each State; hence, unless the Constitution of the United States or a law of Congress excludes the jurisdiction of a State court, in a case of a right arising under the Constitution or law of the United States, the State court, as it had jurisdiction before, can still exercise it.⁵There is another form of the same question: Can a State court take jurisdiction of a case arising under local law, when the defense justified under the Constitution or law of the United States; e. g.: Can a citizen sue a Federal officer for trespass when he justifies under the Constitution or law of Congress?

Bank v. Bank, 92 id. 29; Ex parte McNeil, 13 Wall. 236; The Moses Taylor, 4 id. 429; Eyster v. Gaff, 91 U. S. 591; Boss v. Preston, 111 id. 282; Ames v. Kansas, Id. 449; United States v. Jones, 109 id. 513.

There is no good reason against this jurisdiction of a State court, unless the Constitution or law of the United States gives exclusive jurisdiction to the United States court. It is true, as we have seen, that this exclusive jurisdiction may be given to the United States court by a removal of the case from the State to the United States court, but unless so removed the State court will have jurisdiction.¹ This principle applies to the case of a suit against a military officer of the United States who justifies under the articles of war;² but where the United States officer holds property under process from the United States court, suit cannot be brought against the officer in the State court, for its judgment, if against the officer, would virtually oust the Federal court of the custody of the property through its officer.³And this principle of non-interference by comity is extended by the United States court to a State court in case a similar controversy arise.⁴ In both classes of cases the rule is that the court which first obtained jurisdiction by service of process will not be interfered with by the other by injunction, habeas corpus, or other interference with its jurisdiction. The exercise of its jurisdiction thus first obtained will be free from interference until final judgment or execution.⁵

All cases, however, where the cause of action or the defense to an action was based on the Constitution of the United States, or a law of Congress or treaties made under the authority of the United States, will be subject to an appeal from the final judgment of the highest State court to the Supreme Court of the United States. From what has been already said, it will be apparent, therefore, that the power vested in the Supreme Court of the United States to take cog-

¹ Slocum v. Maybury, 3 Wheat 1; Gelston v. Hoyt, 3 id. 247; Teal v. Felton, 12 How. 284; Buck v. Colbath, 13 Wall. 334; Hagan v. Lucas, 10 Pet. 400; Peck v. Jenness, 7 How. 624; Day v. Gallup, 2 Wall. 97.

³ Home v. Freeman, 20 How. 583; Buck v. Colbath, supra; Ames v, Kansas, 111 U. S. 449.

nizance of appeals from the decision of the Supreme Court of a State, upon questions arising under the Constitution, laws or treaties of the United States, will amply protect these from violation by the decisions of State courts and give uniformity to the decisions in all the States in respect to them under the final judgment of the Supreme Court of the United States.

§ 383. This appellate power, given to the Supreme Court, from the decisions of the inferior courts of the United States, as well as from the decision of the highest appellate court of a State, covers the whole range of subjects which by the second section of this article are embraced within the judicial power of the United States. In the second clause and second section, after stating the cases already referred to in which the Supremo Court shall have original jurisdiction,

the clause gives appellate jurisdiction to the Supreme Court, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. The language, "both as to law and fact," gave rise to apprehensions when the Constitution was under consideration by the people of the different States, to which the Federalist¹ refers, and in which Mr. Hamilton expressed the opinion that it would not give the power to the Supreme Court to re-examine facts decided by the juries in the inferior courts; but he insisted that it applied only to those cases, as in equity and in admiralty, where jury trials did not exist, and where the facts decided by the court would be embodied in the record which came to the appellate tribunal. The question, however, was not left to this reasonable view of the distinguished writer, but was made the subject of the seventh article of amendment proposed in the first Congress under the Constitution, and subsequently ratified by the States. That article reads as follows: "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 juryshall be otherwise re-examined in any court of the United

States, than according to the rules of the common law." This important amendment preserved the integrity of jury trial, so as to avoid the criticism which had been made upon the original Constitution, and excluded the re-examination by the Supreme Court of any fact, tried by a jury, otherwise than according to the rules of the common law. Those rules allow a motion for a new trial to the court itself, and would necessarily involve a re-examination by the appellate tribunal of the judgment of the court upon that motion, either in granting or refusing a new trial by jury.

The third clause of this second section reads thus: "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." This trial by jury, in all criminal cases except impeachment, is but a re-enactment of the thirty-ninth article of King John's Magna Carta, in the year 1215. The eulogium of Blackstone,¹of De Lolme,² and of Mr. Justice Story,³ on this provision, may be referred to without being quoted. It will be seen, however, that it provides that the trial shall be held within the State where the crime is committed, etc. Much uneasiness was manifested at the time of the adoption of the Constitution, which caused the adoption of the fifth and sixth articles of amendment, on which comment has already been made in a former part of this work, and need not be repeated here.

The power of Congress is largely discretionary as to the distribution of jurisdiction between the inferior courts which they may from time to time ordain and establish. In a work on the Constitution it is hardly necessary to go into an analysis of the acts of Congress which have distributed the jurisdiction of the United States among the several

courts. It may be sufficient to say that in a great many cases Congress has left to the State courts a concurrent jurisdiction with the Federal courts; but we have seen, where the Constitution confers jurisdiction upon the Federal courts, it is competent for Congress to make the jurisdiction exclusive. Judge Cooley, whose accuracy will be a voucher for his statements, has given, in his judicial work on the Constitution, this enumeration of the cases and proceedings where Congress has vested exclusive jurisdiction in the courts of the Union: "All crimes and offenses cognizable under the authority of the United States; all suits for penalties and forfeitures incurred under the laws of the United States; all civil causes of admiralty and maritime jurisdiction; saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it; all seizures under the laws of the United States, on land or waters not within admiralty and maritime jurisdiction; all patent and copyright cases; all proceedings in bankruptcy; all controversies of a civil nature where a State is a party, except between a State and its citizens, and between a State and citizens of other States or aliens."¹ So Federal courts have original jurisdiction of actions under the postal laws; suits for drawbacks of duties, and other cases set out in the Revised Statutes of the United States;² also of suits by the

United States, or any officer thereof, suing under authority of an act of Congress; suits arising under the revenue laws; suits arising under any law relative to the slave trade; and suits brought by any person to recover damages for an injury to person or property on account of any act done by him under any law of the United States for the protection or collection of any of its revenues, or to enforce the rights of citizens of the United States to vote in any State; also of suits of a civil nature, at common law or in equity, where the matter in dispute, exclusive of costs, exceeds the sum of five hundred dollars (by act of 1887 changed to two thou-

the suit is between a citizen of the State in which it is brought and the citizen of another State. In many of the suits just referred to, the States have concurrent jurisdiction, as a plaintiff might sue a defendant in a State court to his disadvantage, and he would naturally prefer that his case should be tried in the Federal court. To reach all such cases, though brought in the State court within the jurisdiction of the Federal courts, Congress has gone further, and has made large provision for removing cases from State courts, having original jurisdiction of them, into the inferior Federal courts for trial. Judge Cooley has mentioned a number of cases of this kind in the work just referred to.¹ A single instance may be mentioned: A Virginia plaintiff sues a Massachusetts defendant, whom he reached by process in Virginia, in the Virginia court. By the Constitution, this suit between citizens of different States is within the jurisdiction of the United States court. The law of Congress gives him a right to remove it. The same plaintiff might sue the same defendant in a Massachusetts State court, and this might be satisfactory to the defendant, but not to the plaintiff. After the suit was brought, a former law permitted the plaintiff to remove the case to the United States court, but the act of 1886-87 prevents this on the ground that the plaintiff, having made his election, shall not be allowed to remove. It is further provided that, on affidavit by a defendant corporation that it has a defense under the Constitution of the United States, no matter what the amount involved, the case shall be removed to the Federal court. The cases illustrative of this practice are very numerous, and may be referred to in the note.² This right of removal, granted by

² Teall v. Felton, 1 N. Y. 537; S. C. in error, 12 How. 284; Boom Co. v. Patterson, 98 U. S. 403; Strauder v. West Virginia, 100 id. 303; Tennessee v. Davis, Id. 451; Virginia v. Rives, Id. 313; Gaines v. Fuentes, 98

Id. 10; Railroad Co. v. Whitton, 13 Wall. 270; Insurance Co. v. Morse, 20 id. 445; Insurance Co. v. Pechner, 95 U. S. 183; Gold Washing Co. v. Keyes, 96 id. 199; Koontz v. Baltimore & Ohio R. R. Co., 104 id. 5.

United States law, cannot be taken away or limited by State law; and where a lawful order of removal has been made, and the State court proceeds to judgment, its judgment is reviewable, on appeal to the Supreme Court from the highest State court, under the twenty-fifth section of the Judiciary Act of 1789. On the contrary, if the order of removal was submitted to by the State, but is illegal, the Supreme Court will reverse the judgment and remand the case to the State court for trial.¹ This results from the fact that the jurisdiction of the United States court is rightful, and may be made exclusive of the State court, upon the legal order for removal; therefore the case in the State court was coram non judice. On the other hand, if the order of removal in the Federal court be illegal, the judgment in that court is void because coram non judice. The provisions of the statute of 1878, above referred to, have been greatly enlarged by the act of March 3, 1887, modified by the act of 1888.²These acts have largely abridged the exclusive jurisdiction of the United States courts, and were so intended.³ In this last act, National banks must sue and be sued in State courts as if they were State corporations; and so State courts have jurisdiction of a suit brought against a receiver of a State railroad company appointed by the Federal court in that State.

§ 384. The policy of removal of cases in the State courts to the United States courts, established by the original act, was extended by the third section of the act of March 2, 1833,⁴ in consequence of the laws of South Carolina passed to sustain its ordinance of nullification. Those laws provided for prosecuting and suing an officer of the United

¹ Koontz v. Baltimore & Ohio R. R. Co., supra; Stone v. South Carolina, 117 U. S. 439; Graves v. Corbin, 132 id. 571; The Removal Cases, 100 id. 457.

³ Smith v. Lyon, 133 U. S. 315; Fisk v. Henarie, 142 id. 459; Tennessee v. Bank, 152 id. 454; Hanrick v. Hanrick, 153 id. 192; In re Pennsylvania Co., 137 id. 451; Mo. Pac. Ry. Co. v. Fitzgerald, 160 id. 556.

States for acts done by him under the tariff laws. For any act done under the color of any revenue law of the United States, or on account of any right, title or authority claimed by such officer or other person set up under such laws, the case might be removed to a Federal court; or in case of the imprisonment of any person for acts done by him under the authority of the United States, a habeas corpus from the Federal court for his relief would be granted. This act was somewhat modified and enlarged by the act of 1871¹ and made to apply to criminal prosecutions in the State courts. It is somewhat singular that this statute was called into operation in respect to the fugitive slave law, and the attempted nullification of that law by the State of Ohio. The United States marshal held, under the United States law, a fugitive slave; a State judge ordered his discharge, which the marshal refused to obey, and the State court committed him for contempt. Mr. Justice McLean, upon habeas corpus, discharged the marshal.² In the case of United States v. Jailer, etc., on charge of murder, in the courts of Kentucky, the prisoner offered to show that what he did was under the authority of the United States in the execution of the revenue laws. Judge Ballard discharged him.³ Many other cases of like character have been provided for in the Revised Statutes of 1878. It is provided that in case of the denial to any person, in a civil suit or criminal prosecution in a State court, of any right secured to him by the Constitution or laws of the United States, or in any suit against any civil or military officer for any arrest by virtue of, or under color of, authority derived from any law providing for the equal rights of citizens and the like, such suit or prosecution may, upon petition verified by oath of the defendant, be removed to the circuit court of the United States.⁴ It was under section 643 that the important case of Tennessee v. Davis arose.⁵

Davis was indicted in the State court of Tennessee for murder. He made affidavit that the killing charged was committed in his necessary self-defense, while engaged in the discharge of the duties of his office as internal revenue collector, while attempting to seize an illicit distillery, and while thus engaged he was assaulted and fired upon, and, in defense of his life, returned the fire by which the killing was done. He prayed a removal of the case into the circuit court of the United States. Three questions were adjourned to the Supreme Court: First. Whether the indictment for murder was removable to the circuit court of the United States under section 643? Second. If removable, whether there is any mode of trial prescribed in the act of Congress? Third. If not, can a trial be had in the circuit court of the United States? The first and third questions were answered in the affirmative; as to the second, it was replied that he must be tried under the laws of the State, in the courts of the United States, according to its own forms of proceeding. In this case Justices Clifford and Field dissented in an elaborate opinion, holding that no United States court could have jurisdiction of a homicide committed in the State of Tennessee. With due respect to the decision of the court the author must express his assent to the views of the dissenting judges. The removal was based upon the ground that the United States should protect its officer from prosecution by a State for any alleged crime in the discharge of his Federal office. The removal assumes that the State court would disregard the defense, and violates in its operation the comity which is due from the one government to the other. The law assumed that the United States court alone would uphold the defense. It could not claim that the United States court had jurisdiction to try the offense. The trial involved the hearing of the defense, and a decision upon that, with the right of appeal as shown above, if the decision of the State court had been adverse to the defense of the prisoner. As that defense arose under a law of the United States, the twenty-fifth section of the Judiciary Act affords ample protection to the

prisoner by an appeal from the highest State court to the Supreme Court of the United States. But the removal ousted the State from all jurisdiction to try and punish an offender against its own law, and asserted for the United States court, upon the application of the prisoner, an exclusive jurisdiction in that court to try an offender against a State law.

This judicial anomaly by which the court of the United States must try a prosecution by the State against its own citizen presents difficulties of a striking character. Is a jury to be selected according to the law of a State or according to the laws of the United States? If convicted, there was BO right to appeal to the Supreme Court of the United States; and the right of appeal to the Supreme Court of the State, which he would have had if convicted in the inferior State court, is out of the question. Again, the question arises: If convicted, who may pardon him � the Governor of the State or the President of the United States? The decision in that case was substantially upheld, however, in Strauder's Case,¹ Virginia v. Rives,² Ex parte Virginia,³ and in Neagle's Case.⁴ In Neagle's Case the defendant was a marshal of the United States who accompanied the venerable and esteemed Justice Field upon his duties as the Circuit Judge in California. Terry, who had threatened the life of Judge Field, assaulted him with great violence while sitting at the dinner-table. Marshal Neagle, in defense of the Judge, shot and killed Terry. The State indicted him for homicide, but before trial he sued out a habeas corpus from the United States court, alleging the justification of the act by his duty to defend Justice Field. The United States court discharged him from the custody of the State, and the Supreme Court affirmed the decision. This was done under the Revised Statutes of 1878, section 641. The dissent in this case was very strong. The author, with profound respect for the distinguished judge in whose defense the marshal acted, ventures to concur with the dissent in this case,

upon the ground that it goes farther than the doctrine laid down in the case of Tennessee v. Davis, supra, for it discharged from trial the man who committed the homicide, and did not even remove the case, as in Tennessee v. Davis, from the State court to the United States court for trial. A single judge of the United States court discharged Neagle from custody and trial by the State court. In addition to all of the objections stated above to the decision in the case of Tennessee v. Davis, the decision in Neagle's Case involves the exercise of the pardoning power, which is an executive function, by the judge; for what is pardon, if immunity from prosecution of all crimes be not pardon? In Neagle's Case Chief Justice Fuller and Justice Lamar dissented.

Another case was provided for in the act of August 20. 1842.¹ The act was passed in respect to the celebrated McLeod case. McLeod was prosecuted for murder on the Caroline, which was a vessel supposed to be engaged in aiding a revolutionary movement in Canada. He was indicted in the State court of New York for murder, and defended on the ground that, as an officer of Her Majesty's navy, he made the attack for which Her Majesty's government held itself responsible; that the killing was not a personal homicide, but was an act of quasi-war, rending the prosecution quite an extensive correspondence occurred between the government of Great Britain and the government of the United States, in which the former demanded the release of McLeod, and it was felt to be a very delicate situation. Had McLeod been convicted in the State court, despite his defense, the United States might have been involved in hostile relations with Great Britain. The situation suggested the passage of a law providing that wherever a defense rested, as in this case, upon the relations of the offender to a foreign government, and the act, seemingly a violation of State law, was international in its character, proper to be arbitrated between the government of the Union and the foreign power,

the offender should have the privilege of a habeas corpus from the United States court, and upon the defense appearing as indicated, that he should be discharged. The validity of this regulation by Congress, it seems to the author, rests upon very solid ground. The United States government has charge of the international relations of the States with foreign powers; and furthermore, under a clause of the Constitution in respect to belligerent operations, has the express power to make rules concerning captures on land and water.¹The capture of McLeod under the circumstances was a highly belligerent act. He was a prisoner of war for the international act of belligerency, and a prisoner of war cannot be tried by a State for an act of war within the State. His capture brought him within the range of the Federal power, and it was proper to exercise for his discharge the jurisdiction of the United States courts. The case above referred to will be considered hereafter in another connection � in commenting upon the nature of the fourteenth amendment to the Constitution.

§ 385. A large class of cases has arisen where, in aid of and as a branch of the appellate jurisdiction of the Supreme Court, the exercise of that jurisdiction through the habeas corpus right has been of great service. The doctrine may be thus stated: When a court, by process of contempt or any other process, undertakes to punish with imprisonment a man for refusing to comply with its order, which the court had no authority to make, the original order being void, the primitive order is equally void, and the party, though no appeal lies to the Supreme Court from the order of the inferior court, may by the writ of habeas corpus, issued from the Supreme Court, be discharged from his imprisonment.²The same doctrine was extended in Ex parte Bain.³ In this

² Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U. S. 18; Ex parte Siebold, 100 id. 371; Ex parte Virginia, Id. 339; Ex parte Fisk,

113 id. 713; Ex parte Rowland, 104 id. 604; Ex parte Watkins, 7 Pet. 568; Ex parte Milburn, 9 id. 704; Ex parte Kaine, 14 How. 103. ³ 120 U. S. 1.

case the prisoner was convicted and sentenced to imprisonment by a circuit court of the United States, on an indictment amended by the district attorney, by leave of the court, after it had been returned by the grand jury. It was held that such indictment was not found by a grand jury, and under the fifth amendment of the Constitution the prisoner could not be tried on it, and that his conviction and imprisonment were void. No appeal lay from the judgment of the Supreme Court, but the Supreme Court discharged the prisoner because the judgment was coram non judice and void. In the case of In re Ayres,¹ the same circuit judge enjoined the Attorney-General of Virginia from bringing suit in behalf of the Commonwealth against its taxpayers. The Attorney-General refused to obey the injunction, and the court committed him for contempt. He prayed a habeas corpus from the Supreme Court, who discharged him on the ground that the order of injunction by the circuit judge was void and the commitment for contempt was equally so; and, though no appeal lay from either order to the Supreme Court, yet the illegality of the imprisonment required the discharge under the habeas corpus. Again, the powers of the judiciary of the United States are, in terms of the Constitution, judiciary powers only, and they imply no political power. They accept the determination of the political departments of the government as conclusive, whether war exists or peace has been restored. What is the de facto government of another country; the authority of foreign ministers; the admission of a State to the Union; the restoration of the seceded States to the Union; the extent of the jurisdiction of a foreign power; the relations of the Indians to the government, � are all questions which belong to the executive and legislative departments of the government, and in respect to which the judiciary power does not apply, except in regard to what has been decided by the political departments.² This principle has been pressed to an extreme point,

to which attention will now be called. Upon the passage of what was generally known as the "Reconstruction Measures" in 1867, vetoed by President Johnson, but passed non obstante his objection by two-thirds of both Houses, which substantially subjected the Southern States to a government of military satraps, the State of Mississippi filed a bill against the President praying an injunction restraining the execution of such unconstitutional laws by the President of the United States. The case was argued very fully, and the Supreme Court unanimously refused to allow the bill to be filed, on the ground that it had no judicial power to enjoin the President in the performance of his official duties.¹ The State of Georgia filed a bill against Secretary Stanton upon the same grounds substantially as in the previous case, and the Supreme Court dismissed the bill for want of jurisdiction upon like grounds. Another effort was made by a bill which it was proposed to file against Generals Grant, Meade and others. The report of the cases does not state wherein they differed from the former cases, nor what the court did with them.

These decisions seem to settle the question that the Supreme Court is no arbiter between a State of the Union and the United States government as to any political issue, and that despite the unconstitutionality of the reconstruction acts there was no judicial power to decide upon that question unless it arose in a case between parties where property and personal rights were involved. The political right of a State to be protected against the unconstitutional reconstruction laws of the government is without remedy before the Supreme Court of the United States; and this was held though in the case of Georgia v. Stanton the bill charged that the effect of the reconstruction measures would be to dispossess the State of its public property as well as of its polit-

Luther v. Borden, 7 How. 1; Georgia v. Stanton, 6 Wall. 50; Williams v. Insurance Co., 13 Pet 415; Kan-

ical power; the court saying that the question of property was only the effect of the dispossession of the political power and incident to it. In McCardle's Case, one imprisoned under the judgment of a military court, organized under the reconstruction laws, sought to be released by habeas corpus from the Supreme Court because of the unconstitutionality of those laws and judgment of the courts in pursuance of them. The Supreme Court decided that it had jurisdiction to issue the writ, but postponed the consideration of it until the next term. In the interval Congress passed the Drake bill over the veto of President Johnson, which bill took away the jurisdiction from the Supreme Court to hear the habeas corpus. At the next term the court dismissed the writ of habeas corpus and refused to release McCardle because it had been divested of its power by the Drake bill.¹ There can be no doubt that except for the Drake bill the Supreme Court would have decided to release McCardle on the ground above stated, because the personal right of a citizen was involved as the consequence of an unconstitutional law.

Courts-martial are the courts which are constituted under the rules and articles of war for the trial of offenses arising under the military and naval service,² and of militiamen when called into the actual service of the United States. The power to establish these does not exist as part of the judicial power of the United States, but as part of the general war power: "To make rules for the government and regulation of the land and naval forces. To provide for calling forth the militia to execute the laws of the Union," etc.³ The fifth article of amendment saves this power in the exception it makes in the following language: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger." The celebrated case of Milligan⁴ was a case of condemnation to

¹ 6 Wall. 318; S. C., 7 id. 506. ² Martin v. Mott, 12 Wheat. 19; Wise v. Withers, 3 Cr. 331.

death of a citizen of Indiana by a court-martial approved by the President. The Supreme Court, after full argument, held the trial, conviction and sentence to be a violation of the Constitution. It may therefore be asserted that courts-martial are only for the trial of persons in the army, navy or military service, when in actual service. Military courts or commissions have been justified by the laws of war and for the trial of persons whose acts impede or obstruct military operations. When the army is in the enemy's countrv, provincial courts can be established under military orders, as in the case of the Mexican provinces in the military possession of the United States army.¹ While the United States army was in possession of the State of Tennessee during the civil war, Coleman, a soldier of the army, killed a citizen. There were no civil courts to try him for the homicide, and he was tried by a military tribunal and acquitted. After the war he was indicted for the homicide by the civil court of Tennessee and convicted. The Supreme Court held that his acquittal by the military tribunal exempted him from any other trial, and that the conviction by the civil court was wrong and reversed it.² The doctrine seems to be sound that, in the exceptional cases mentioned, where the civil courts are not open, a military tribunal may constitutionally try such case. But it must be confessed that the trial of a citizen by a military court is so obnoxious to our Constitution, and especially to the fifth article of amendment above cited, that it is difficult to justify any judgment upon a conviction by such a court.

The last class of courts to which attention is called are the courts of the Territories. As a Territory is not a State of the Union, and is subject to the government of Congress during its temporary existence as a Territory, it is held that the courts established in the Territories are not courts of the United States. Congress may establish them, and regulate their jurisdiction as part of their governmental power

over its Territories, but not within the terms of the third article of the Constitution, which we have been considering. The judges of these courts, therefore, do not hold offices during good behavior, but are appointed by the President and are removable like other officers. The practice, pleading and procedure are left by Congress to be regulated by the Territorial legislatures.¹

¹ American Ins. Co. v. Canter, 1 Wall. 484; Hornbuckle v. Toombs, Pet. 511; Clinton v. Englebrecht, 13 18 id. 648.

§ 386. In the tenth amendment of the Constitution, which is in fact but an expression of what is involved by implication in the original Constitution, it is provided: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This draws the line of demarcation between the powers delegated to the United States and the powers reserved to the States for the people. The language of the clause would indicate that all powers are reserved to the States, or the people, except two classes: First, those delegated to the United States by the Constitution; and second, those prohibited to the States.

We have already considered the extent of the powers delegated to the United States by the Constitution, and the express limitations upon those powers as well as those which were implied from the nature of the Constitution, and found that those so delegated or implied are not reserved to the States. We come now to consider another class of powers, not reserved to the States or to the people, and that class is those which are prohibited to the States. Two remarks are proper in this connection. First, except for these express prohibitions, the States would hold them as reserved under the terms of the tenth amendment. Second, all of these prohibitions are based on the principle that in the nature of our Union, the powers prohibited to the States should be vested exclusively in the common government, and that their exercise by the States would be inconsistent with the intercommunication of citizen rights, intended to be conserved by the establishment of the Union. The application of these remarks to each limitation will appear in the consideration of

them. These limitations are of two classes: absolute and qualified. We will consider first the absolute limitations. These are to be found in article I, section 10, clause 1 of the Constitution. The language of the first limitation is: "No State shall enter into any treaty, alliance, or confederation." It would seem from this express limitation that, but for its being inserted, the States might enter into a treaty, alliance, or confederation. Why is it so expressed? It is obvious that the exercise of such a power by the State would be contrary to the nature of the Union, or produce friction with it. If a State might make a treaty with a foreign power, the mutual obligation of such treaty would involve the Union in a defense of the State against unjust enforcement of the treaty, or in offensive operations against a foreign power to enforce the treaty. This would give to each State by its separate will a power to involve all the States in war, which might result from the infraction of the treaty by either of the parties. Such a result would be contrary to the just relations of the States inter se. The treaty-making power between the United States and foreign nations was given, as we have seen, to the President and Senate as representing all. The relations of each State, therefore, to foreign powers was fully met by this power to make treaties between the United States and foreign countries. To make peace and avert conflict, it was the wise policy of the Constitution to give the exclusive treaty-making power to the President and Senate as representing all the United States, and to exclude any one State from entering into any such international obligation.

An alliance between any State and a foreign power for offense or defense would obviously be inconsistent with the Federal alliance between the States of the Union. It is therefore necessary and wise to prevent any one State from involving the United States in any separate alliance that it might desire to make with a foreign power. The same remark is a fortiori applicable to the prohibition of confederation by any State with a foreign power. Confeder-

ation would involve political relations established by the Constitution of the Union. To this prohibition both of the preliminary remarks are applicable. The framers of the Constitution saw that, if not prohibited, each State might enter into treaty, alliance, or confederation with a foreign power, despite the grant of the power to the President and Senate to make treaties. It was wise, if not essential, therefore, to prohibit any such action by the State. The wisdom of the prohibition need not be further vindicated.

No State shall "grant letters of marque and reprisal." The nature of this power which was granted to Congress¹has been already considered. Such letters may be issued in peace and in war; but in either case it is the forcible vindication of right by the government that issues them. To allow each State separately to do this might bring on collisions with the privateers of the States and foreign countries which would involve all in war. It is wise and essential, therefore, while granting the power to Congress to do this, that the power should be exclusive of any such power in a State, lest the State, by its separate action, should involve all the rest in war; and yet it will be observed that the prohibition involves the implication that the State might have issued its own letters of marque and reprisal if it had not been prohibited.

No State "shall coin money." Under the Articles of Confederation, the States, as well as Congress, had the right to coin money, but Congress had the power to regulate the value thereof. It was clearly intended, not only to grant to Congress the power to coin money,² but to make this power exclusive by forbidding the States to do so, which would otherwise have been imputed. In considering heretofore the power of Congress to coin money and regulate its value, we have pointed out the important relations of the medium of exchange thereby provided for in its relations to commerce among the States, and to the intimate and allied relations of citizenship in the several States. Coin of uniform value,

for the whole Union, is essential to the freedom of trade which the Constitution proposed to establish between these United Commonwealths. This is to be done by the exclusive grant of this power to Congress and prohibition of it to the States.

§ 387. The next clause provided that no State "shall emit bills of credit." By the Articles of Confederation, Congress had the power to emit bills of credit, and there was no prohibition of this power to the States. The disastrous effects which resulted from the emission of bills of credit by the Congress of the Confederation as well as by the various States, flooding the avenues of commerce with irredeemable and valueless paper money, made the convention of 1787, as we have seen, strike out the power proposed to be given expressly to Congress to emit bills of credit under the power to borrow money; yet the implication of this power of emitting bills was held not to involve the power to make such bills issued by Congress a legal tender in the payment of debts, but the Constitution intended to cut out by the roots the power of the States to flood the Union with their paper money. This prohibition did not forbid the State to issue paper obligations, bonds, notes, or coupons attached to bonds for payment of interest, etc., and such were not intended to be inhibited. The meaning, therefore, of the term "bills of credit" came to be a question of importance in the early cases in the Supreme Court. In Craig v. Missouri¹ the Supreme Court held that any obligation by which the State engages to pay money at a future day, and intended to circulate as money, whether they were made by the State a legal tender or not, were unconstitutional. The term "bills of credit" was in that case, and in the later case of Briscoe v. Bank of Kentucky,² held to include all classes of paper issued by the sovereign power, pledging its faith, and intended to circulate as money. The emission of such obligations with such pledge of credit, in the absence of such intention, makes the instrument not a bill of credit under this prohibition.

The court further decided that, while the States cannot emit notes to circulate as money, they may incorporate banks with the power to issue bank-notes to circulate as money. These are the notes of the bank, not of the State, and unless the State's credit is pledged to the redemption of these bank-notes, such bank-notes will be constitutional, and will not be bills of credit emitted by the State within the terms of this prohibition; and it was afterwards conceded that, though the State was a stockholder, and the only stockholder, it was held to be the note of the bank and not of the State.¹ While, therefore, certificates issued by the State of Missouri were held to be bills of credit and void, because intended to circulate as money,² the coupons on bonds of the State of Virginia, issued to its creditors, were not held to be bills of credit within the meaning of this prohibition, because, though negotiable and receivable for taxes, they were not intended to circulate as money.³

The next provision is that no State "shall make anything but gold and silver coin a tender in payment of debts." This is a very important provision. Upon it several points may be made. Reading it with the fifth clause of the eighth section of the first article, which gives power to Congress "to coin money, regulate the value thereof, and of foreign coin," etc., it is obvious that the power of Congress to coin money enables it to coin gold and silver coin for the purpose of being used as a medium in payment of debts. The clause would then be as if it read, "Congress shall have the power to coin gold and silver coins, and no State shall make any but these a tender in the payment of debts." Second, taken in connection with the immediately preceding clause, by which the States are prohibited from emitting bills of credit, it is obvious the Constitution contemplated, as the medium of exchange, gold and silver coins struck by Congress, excluding all power of

¹ Darrington v. The State Bank of Alabama, 13 How. 12. ² Craig v. The State of Missouri, 4

the States to coin money of their own or to emit bills of credit. Third, several of the preceding powers, as we have seen, are correlated to powers granted to the Congress, with which the exercise of the same by the States would be inconsistent. That is not the case with this clause, for there is no power given to Congress, nor a hint of a power in Congress, to make anything a tender in the payment of debts. Indeed this clause of prohibition to the States indicates that, but for its being inserted in the Constitution, it would have been left to the States, as a reserved power, to make anything they pleased a tender in the payment of debts. If there is anything which is within the language of the reserved powers of the States, it would be the regulation of the relations of debtor and creditor in the private concerns of society. It was therefore essential that such a prohibition upon the power of the State should be inserted. This prohibition, therefore, gives no warrant for the assumption of a power by Congress to make anything a tender in the payment of debts except gold and silver coin. If the power within this clause of prohibition had been clearly reserved to the States without such prohibition, it would be wholly illogical to infer that the prohibition of such a power was to be equivalent to a grant of the prohibited power to the United States. Under the tenth amendment of the Constitution the powers delegated to the United States, if not prohibited to the States, are reserved by that amendment to the States or to the people. It would be an unwarranted perversion of this article to hold that the powers not delegated to the United States, but prohibited to the States, are to be regarded, because not reserved to the States, as delegated to the United States. It would therefore seem to be a sound interpretation of these kindred clauses of the Constitution, that while Congress was to be the instrument for putting the stamp of currency upon coins of gold and silver, in order to create a circulating medium, the States were forbidden to make anything but these coins a tender in the payment of debts, and no power was delegated to the United States to do so; and therefore, as a medium for the solution of debts

between man and man, the Constitution intended that the gold and silver coin, stamped by Congress, as well as foreign coins, whose value, like that of the domestic coin, is to be regulated by Congress, was to be the only medium for the payment of debts under the system established by the Constitution.

Another remark on this and the preceding clause will be applicable. The bills of credit which a State might desire to emit, or the thing which a State might make a tender in payment of debts, would only have been applicable to the people of the particular State itself. It would have been somewhat out of place for the Constitution to have forbidden the State to exercise these powers, but looking to the freedom of interstate commerce, and of the intercourse between the citizens of the different States, and to the unification of the business of the whole Union, without regard to State boundaries, all of which was contemplated by the Constitution to be free among the States as if they were not separated by State boundary lines. It would be very important that, as far as contractual relations were created between the citizens of different States, the citizen of every other State should be assured that no invidious policy by any one State should shake the credit which was given to the terms of any contract. The provision was therefore made to prevent any State from impairing the integrity of contractual obligations by making anything except gold and silver coin, issued by Congress, the medium for the solution of debts. In this aspect the prohibition is essential to the assurance of confidence intended to be established in the dealings between citizens of the different States.

The next clause provides that no State shall "pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." We need say nothing more on the subject of bills of attainder and ex post facto laws than has already been said in discussing a like prohibition on Congress in clause 3 of section 9 of article I of the Constitution. What was said on that subject may be here referred to without any further

comment.¹ The important cases on this subject may be noted.² This prohibition upon the State was not so much designed to defend the citizen of that State from the power of our own Commonwealth as it was to protect the citizens of other States who might be subject to criminal prosecution in a State other than their own. It was to protect these and all from the tyranny of such laws as are mentioned. But the third clause, which forbids any law impairing the obligation of contracts, is one of great importance. The power of this prohibition was, as has already been stated, to maintain the integrity of contracts between citizens of different States and portions of the Union. If any State could, at its will, impair the obligation of a contract between its own citizen and the citizens of other States, it would be a fatal impediment to interstate commerce and Federal intercourse. A careful analysis of this important provision and a reference to the cases in which its interpretation has come before the Supreme and other courts will now be attempted. The meaning of the word "law" embraces not only an ordinary act of legislation, but the Constitution of a State, which is held to be a law within the meaning of this clause because it is the supreme law passed by a State; hence, if the Constitution of a State, by its operations, directly or indirectly impair the obligation of private contracts, it would be void under this provision of the Constitution of the United States.³

§ 388. Contracts are executed and executory. An executed contract is one between two or more parties by which property or other right is transferred or granted from one to the other. An executory contract is an agreement to do or not to do a particular thing. This clause of the Constitution forbids the impairing of either class of contracts. No State can pass a law invalidating or annulling a deed. This was decided in the leading case of Fletcher v.

v. Biddle, 8 Wheat. 1; Ogden v. Saunders, 12 id. 214: Railroad Co. v. McClure, 10 Wall. 511; County of Moultrie v. Savings Bank, 92 U. S. 631.

Peck,¹ and it forbids a State from impairing the validity of its grant to a private party.² It was held that a State cannot impair its own contract to receive coupons on its own bonds, in the payment of taxes due to itself; and a contract by a State to receive certain bank notes in payment of taxes is binding and cannot be impaired;³ but where the State holds a trust fund for certain purposes, it cannot make a contract for the payment of the interest on such trust funds to itself in such bank notes. Its duty as trustee makes its agreement to receive these bank notes, in the payment of interest on such trust funds, a violation of such trust and a violation of such contract. The contract involved is not impaired in obligation by the State's refusal to receive such notes in payment;⁴ and this principle is applied to the constitutional duty to set apart a certain proportion of its taxes for school purposes, as its contract to receive coupons of its bonds in payment of ordinary taxes is not a valid and binding contract in so far as a school fund is concerned.⁵ It applies also to a contract between two States; neither State can, by law, impair the obligation of such contract.⁶ A law of a State granting swamp land, unsettled or drained, and exempting such land from taxation, is a contract between the State and the holder which the State cannot impair by taxing.⁷ Cases sustaining these propositions and kindred ones are without number, and a reference to the latest, in which all are more or less named and reviewed, is all that is necessary.⁸

§ 389. We come now to the application of this clause to corporation charters. The leading case on this subject is

² New Jersey v. Wilson, 7 Cr. 164; Terrett v. Taylor, 9 id. 43; Coupon Cases, 114 U. S. 269; McGahey v. Virginia, 135 id. 662; Louisiana v. New Orleans, 102 id. 203; Antoni v. Greenhow, 107 id. 769.

³ Woodruff v. Trapnall, 10 How. 190; Furman v. Nichol, 8 Wall. 44; Keith v. Clark, 97 U. S. 454.

⁸ Thompson v. Missouri, 171 U. S. 380; Thompson v. Utah, 170 id. 343; Hawkes v. New York, id. 189, and cases supra.

the Dartmouth College Case.¹ To understand this class of cases, it may be proper to say that a corporation is an artificial being, invisible, and existing only in contemplation of law. Created by the legislative department, it possesses certain properties which the charter confers upon it, either expressly or by implication. It clothes bodies of men with perpetuity of existence, with certain qualities and capacities for the advancement or promotion of some particular object. It is granted to persons who apply for the charter and who invest their money or engage in a business the powers of which are conferred by the charter. A law granting a charter to persons does not create a corporation until they accept it.² The law is a proposal by the government to the persons indicated, which becomes a contract between the government and such persons when, under the law and its provisions, they organize for the corporation purposes. Until then the corporation does not exist. When this is done, the proposal of the government, by the acceptance of the parties, becomes a contract between them.³ The charter of such a corporation is therefore a contract between the government and the persons who accept; and being such a contract, the government cannot repeal, alter, or in any manner impair the charter without violating this constitutional provision.⁴ In the leading case of Dartmouth College, supra, the Crown of Great Britain in 1751 had granted a charter for that college to certain parties who contributed their funds for its endowment. The terms of the charter fixed its organization and prescribed the powers and functions of the various boards and faculty connected with it. After the Revolution the State of New Hampshire (all the rights and privileges, as well as obligations, of Great Britain, then

³ Commonwealth v. Cambridge, 7 Mass. 160, 184; Smith v. Silver Valley Mining Co., 64 Md. 85; Baltimore & Ohio R. Co. v. Keedy, 75 id.

330; Rex v. Vice-Chancellor, etc., 3 Burr. 1661; Dartmouth College Case, 4 Wheat. 518; Bank of United States v. Dandridge, 12 id. 71; Thaxter v. Williams, 14 Pick. 53. ⁴ Cases supra.

devolving upon each separate State) undertook to change the charter without the consent of the college. The question came by appeal to the Supreme Court. Chief Justice Marshall, in a learned opinion, explained the doctrine that the college was on a contractual basis between the Crown and the founders, and that the State of New Hampshire, as successor to the Crown, could not change the terms of that valid and binding contract. That case, decided nearly eighty years ago, has been followed by numerous cases in the Federal and in the State courts with almost uniform approbation; and it may be now laid down as the established doctrine that all corporate charters which rest on a contractual basis are unchangeable in every respect by the power of a State.¹

This perpetuity given to corporate power, placing it beyond the reach of State action by its legislature, if exercised constitutionally, has, in the last century, given rise to a conservative saving in most of the charters of a right of the legislature to repeal, alter and amend at pleasure. When such right is reserved, of course the repeal or amendment of the charter is a part of the contract and may be fully exercised.² But as to this a distinction must be made: all rights, privileges and immunities derived directly from the State's charter are those under the reserved powers of the States to repeal and alter;³ and so every right, franchise or power of the corporation depends for its being upon the grants of the charter.⁴ But all rights of property or other rights, acquired by the exercise of its chartered powers, are beyond the reach of the legislative repeal and cannot be divested. The exercise of chartered power in the future is ended by repeal, but the fruits of the exercise of such power before the repealing act cannot be taken away.⁵

¹ Jefferson Branch Bank v. Skelly, 1 Black, 442; Hall v. Wisconsin, 103 U. S. 5; Binghamton Bridge, 3 Wall. 51; New Orleans v. Houston, 119 U. S. 265.

Repeal takes away power, but cannot take away what the power created while it was in being. A tree may be cut down, but its gathered fruit is beyond the power of the axeman to injure. So if a charter be wholly repealed, and while it cannot survive as a corporation, all its property rights or other franchises that may exist may be sold or dedicated to the payment of its debts or divided among its stockholders;¹ and so when the power to alter is exercised, while it cannot continue to act, except under its modified charter, the charter itself is not binding upon the corporators without their consent.²

An eleemosynary corporation charter is irrepealable, and not to be impaired except by the consent of the founders; but such corporations on public foundation are subject to the legislative power of repeal and alteration, and this though such corporation has been aided by private contributions. The original public foundation gives character to the funds so contributed; e contra, such a corporation on private foundation, though aided by public contributions, is still not subject to legislative repeal or alterations.³ But where a corporation by its charter is based on State and private subscriptions of stock, this was held to be contractual and irrepealable.⁴ Again, a municipal corporation is a subordinate Body-politic. These grew out of the public policy attendant on Roman conquest, and were corporations endowed by imperial Rome, with certain political functions for the particular locality. They were the prototypes of the free cities of the middle ages, which were the defenses of liberty under

281; New Jersey v. Yard, 95 U. S. 104; County of Scotland v. Thomas, 94 id. 682; Sinking Fund Cases, 99 id. 700.

¹ Memphis R. R. Co. v. Commissioners, 112 U. S. 609; Willamette M. Co. v. Bank, 119 id. 191; Shields v. Ohio, 95 id. 319.

³ Dartmouth College Case, 4 Wheat. 518; Curran v. Arkansas, 15 How. 304; Mormon Church v. United States, 136 U. S. 1; City of Louisville v. President, etc. of University, 15 B. Mon. 648; Visitors, etc. of St. John's College v. State of Maryland, 15 Md. 330.

local administration against the despotism of the era. In modern times the government of England and the States of America have created cities and towns with charters in which there is a delegation by the sovereign power to the municipality of certain political functions, with a view to needful local government. Counties, cities and towns are embraced in this class.

These charters are based upon no contract with the people, but created by the political authority for its convenience and for motives of public policy. The relation between the sovereignty and municipality is not contractual, but is one of delegation by a principal to an agent. This grant of political power, therefore, is revocable at the will of the State, because it is not on a contractual basis;^l and this distinction was maintained in the early leading case of Dartmouth College; and Sharswood, J., has said in an important case,² with great force, that "a State legislature, being a delegated authority, cannot delegate its legislative power to a municipality by irrevocable grant." Such a contract of alienation would be ultra vires and void.³ A benefit granted to a county by a State is revocable, because a benefit to itself,⁴ and the legislature may resume its power in a city at will.⁵ It is clear that a State cannot, therefore, alienate, by charter or otherwise, to a municipal corporation its political

¹ Korn v. Mutual Assurance Society of Virginia, 6 Cr. 192; Maryland v. Baltimore & O. R. R. Co., 3 How. 651; East Hartford v. Hartford Bridge Co., 10 id. 611; Butler v. Pennsylvania, 10 id, 402; Trustees, etc., v. Indiana, 14 id. 268; Zabriskie v. Cleveland, etc. R. R. Co., 23 id. 881; Yeaton v. Bank of Old Dominion, 21 Gratt 604; Laramie Co. v. Albany Co., 92 U. S. 307; Mt. Pleasant v. Beckwith, 100 U. S. 514.

How. 369; United States v. Railroad Co., 17 Wall. 322; Yeaton v. Bank of Old Dominion, 21 Gratt 604; Whiting v. Town of West Point, 88 Va. 905.

⁵ Mayor, etc. v. State ex rel. Board of Police, 15 Md. 376; Bass v. Fontleroy, 11 Tex. 698; Matter of Lands in Town of Flatbush, 60 N. Y. 398; People v. Hurlbut, 24 Mich. 44; United States v. Memphis, 97 U. a 284; New Orleans v. Clark, 95 id. 614.

duty to preserve the health or morals of the people. Its political power is not a subject for contract of transfer, and such a contract is void and revocable.¹ Therefore a lottery charter, though contractual with the parties to whom granted, may be revoked by the State, because the contract itself is subject to the supreme and inviolable right of the State to regulate the morals of its people.² So it cannot, by charter contract, debar itself from regulating railroad charges, for the railroad company is chartered to perform public functions for the benefit of the public, and the State cannot contract away its duty to protect the people against exorbitant charges. The company is presumed to take the charter subject to the power of the State to regulate it.³ The contract by a State not to tax the property of a corporation is against public policy, and will not be presumed unless it is clearly exempted.⁴ To make such a contract valid, there must be a consideration to the State and the contract must not be against public policy.⁵ In the Lake Front Cases⁶ the Supreme Court held that the State of Illinois held the right of the public lakes and their public use for the benefit of its people, and that it had no power to alienate to a railroad company these rights which it held in trust for the public; that the contract was ultra vires, and that a repeal of the law was not an impairment of the contract because the contract itself was void.⁷

The several apparent exceptions to the operation of this clause may now be mentioned. A State may not impair or avoid a valid contract, but it may validate a contract which

² Stone v. Mississippi, 101 U. S. 814; Fertilizing Co. v. Hyde Park, 97 id. 659.

³ Railroad Co. v. Fuller, 17 Wall. 560; Pennsylvania R. R. Co. v. Miller, 132 U. S. 75; Chicago, etc. Ry. Co. v. Wellman, 143 id. 339; New York, etc. R. Co. v. Bristol, 151 id. 556.

⁵ Rector, etc. v. County of Philadelphia, 24 How. 300: Delaware R. R. Tax, 18 Wall. 206; Tucker v. Ferguson, 22 id. 527.

⁷ New Orleans v. New Orleans Water-works Co., 142 U. S. 79: Goszler v. Corporation of Georgetown, 6 Wheat. 597.

otherwise would be void. It cannot make a contract between two parties, but, where a contract made between them is void for lack of some formality, it may be validated. The propriety to do this may be questioned, but the authority to do it is not forbidden by this clause.¹ Again, the interest allowed by a contract cannot be changed by law, for that would impair the obligation of the contract; but the interest on the judgment of the contract may be changed by the law, for this interest on a judgment is not contractual. It operates by force of law and may be changed.²Again, this clause only forbids the impairment of the obligation of a contract, and it does not forbid a State to avoid a liability, for a tort ex vi termini is not ex contractu.³

It has been stated above that a charter to a corporation which is not municipal is a contract with those who accept the charter, invest their money on the faith of it, and operate the corporation, and that the State cannot change such charter without the consent of the corporation. A principle has been settled which it is important to consider as modifying this doctrine. As all of these charters grant to certain individuals powers which belong to the public, and to that extent may be detrimental to the public interest, it has been decided in Charles River Bridge Co. v. Warren Bridge Co.⁴ that the construction of all such charters must be strictly against the corporation and favorable to the public, and that no corporate powers are to be presumed to be conferred except those expressly granted or such as are implied by clear interpretation. The learning of the court, therefore, is against the surrender of public power to the corporation, and the public is only bound to the extent of that which is clearly granted by the charter. In the leading case just mentioned the legislature of Massachusetts granted to the Charles River Bridge Co. a franchise to build a bridge over the Charles river, and

² United States v. Walker, 109 U. S. 259; United States v. Poinier, 140 id. 162.

afterwards granted a charter to the Warren Bridge Co. to build a rival structure. It was claimed by the first company that its monopoly was infringed upon by the creation of the new charter, but the Supremo Court held that though that was so, the legislature had not so bound itself in granting the first charter that it could not grant another to any other rival company, and the two charters were therefore held valid. The cases on this subject are numerous, but in this work a discussion of all of the distinctions is not deemed necessary.¹ This also applies especially to cases of exemption from taxation. It is not to be presumed that such exemption is intended to be granted to any corporation, and therefore the construction in favor of it from the charter must be very clear and beyond doubt.² Such exemption from taxation may be the subject of contract by a State with a person, but it will not be unless clearly granted.³

We will consider now what the clause declares shall not be impaired. Note it does not say the contract shall not be impaired, but the obligation of the contract shall not be impaired, because it is possible that the contract may be left in its integrity when its obligation is destroyed. What then is meant by the term "obligation," as applied to the contract? The civil-law view of the contract suggests a very clear meaning for this word obligation.⁴ The word pactum (same root as pax) is the aggregatio mentium of the parties. Pact is simply the agreement between the parties without reference to its legal effect. Another word, contract (con

¹ Beaty v. Knowler, 4 Pet. 152; Providence Bank v. Billings, Id. 514; United States v. Arredondo, 6 id. 736: Dubuque, etc. R. R. Co. v. Litchfleld, 23 How. 66; West River Bridge Co. v. Dix, 6 id. 507; Rice v. Railroad Co., 1 Black, 859; The Binghamton Bridge, 3 Wall. 51; Slidell v. Grandjean, 111 U. S. 412; Vicksburg, etc. R. R. Co. v. Dennis, 116 id. 665; Given v. Wright, 117 id. 655.

² Woodruff v. Trapnall, 10 How. 190; State Bank v. Knoop, 16 id. 369; Furman v. Nichol, 8 Wall. 44; Home of the Friendless v. Rouse, Id. 430, 439; Jefferson Branch Bank v. Skelly, 1 Black, 436, 474; Asylum v. New Orleans, 105 U. S. 362; Louisiana v. Jumel, 107 id. 750; Tennessee v. Whitworth, 117 id. 138.

and traho), expresses the drawing together of the parties to the pact by the vinculum juris. Pact becomes contract when the vinculum juris draws and holds the parties together. Pact, without legal sanction, is nudum pactum; with legal sanction it is a contract. Obligation (ob and ligo, binding upon one or to the other) is defined to be juris vinculum, quo necessitate adstringimur alicujus solvend� rei. Contract, therefore, is equal to pact plus obligation. Pact minus obligation is nudum pactum.¹ Obligation of contract is therefore the chain of law which binds parties to the pact, the chain which the law throws around the parties who have made a pact; hence all the legal machinery by which each party to a pact is ex necessitate legis bound to fulfill its terms constitutes the chain � the obligation of the contract; but to take away or weaken any link in that chain or any part of the legal machinery (a procedure which obliges the party to perform it) is pro tanto to impair the obligation of the contract and is forbidden by this clause of the Constitution. The chain is only as strong as its weakest link. To weaken any link is therefore to weaken the chain.

Each essential remedy to this obligation afforded by State law, at the time of the contract, is secured against impairment by State law. Each is a link in the chain, and to destroy or impair any link is to destroy the obligation of the contract. To leave the contract untouched is not sufficient. The State must leave every essential remedial link in the procedure which constitutes the vinculum juris in all of its integrity and without impairment. In the language of Justice Curtis in Curran v. Arkansas:² "If the law is so changed that the means of enforcing the duty are materially impaired, the obligation of the contract no longer remains the same." In other words the parties contracted on the faith of the remedial procedure by which its obligation is to be enforced. The material impairment of any part of this procedure is to impair the obligation of the contract.³ The right to sue

¹ State of Louisiana v. Mayor, etc., 109 U. S. 285; Pennsylvania R. Co. v. Miller, 132 id. 75.

upon a contract, to prosecute it to judgment, and to issue execution against any party and his property for the satisfaction of the judgment, are successive links in this vinculum juris, and included in this are all provisions for sale of property under such execution, or the sale under mortgage or other security given for the debt. A material change in any of those provisions is a change in the vinculum juris. If the chain lessens the security it impairs the obligation.¹

Any such change may be made by the legislature to operate as to future contracts, but cannot operate as to prior contracts. The statute of limitations may be changed by a State and the time may be shortened, but if so shortened as to defeat a right to sue, existing at the date of the law making the change, it impairs the obligation of a contract and is void. And it is held that all such statutes of limitations will be void as to prior contracts, unless the new limitation leaves ample and sufficient time for the party to sue. If it does not it is void.² Where executions are allowed at the date of the contract against land and personal property of the debtor, and a law is passed which materially changes the property subject to execution, or postponing the sale of such property by levy or execution, or postponing the sale under a mortgage beyond the time prescribed by it, or making the sale invalid if the property does not bring a certain amount of money, all of these impair the obligation of the contract, because they weaken the link in the vinculum juris.

But it is clear that the courts, especially of equity, have judicial discretion to see that property shall not be sacrificed, and may adopt rules which postpone the right of the creditor until a fair sale of the property according to judicial rules can be made. This is not law-making, but it is judicial discretion, and the exercise of such discretion is not within the

203; Hartman v. Greenhow, Id. 672; Fertilizing Co. v. Hyde Park, 97 id. 659; Virginia Coupon Cases, 114 id. 269; White v. Hart, 13 Wall. 646; Walker v. Whitehead, 16 id. 314 ¹ McCracken v. Hayward, 2 How.

² Terry v. Anderson, 95 U. S. 628; McGahey v. Virginia, 135 id. 662; Wheeler v. Jackson, 137 id. 245.

prohibition of this clause;¹ and, while execution against the property of a debtor cannot be materially changed, yet the execution of ca. sa., which constrains the debtor's liberty to enforce the payment of the debt, may be abolished or changed without an impairment of the obligation of the contract. The semi-punitive means of imprisonment of the debtor is not regarded as an essential part of the obligation. The means of the debtor, his property, is still left without impairment within the reach of the creditor,² nor will any change in the form of action or the mode of court procedure, unless material to its efficiency, be held as an impairment of the obligation of the contract.³ There was a dictum in Bronson v. Kinzie,⁴ to the effect that what are known as poor-law exemptions might be increased with moderation without conflict with this clause of the Constitution, it being held that the State had a right to provide, by internal polity, against the utter destitution of the poor debtor by execution laws which would sweep away the essential parts of household and kitchen furniture used for the preservation of the life of the inmates of his home. But this dictum must be carefully guarded, for it is on the verge of impairment of the obligation of contracts, and, if unduly extended, would amount to it. Thus, homestead laws have been passed in late years which largely extend the exemptions of the debtor's property from the reach of execution. In Virginia $2,000 worth of property is saved to the debtor as his homestead. This would defeat many debts and clearly would impair the obligation of the contract, and such laws have been held void.⁵ So stay laws, and laws postponing the foreclosure of mortgages and the like, which would not prevent

³ White v. Hart, 13 Wall. 646; Tennessee v. Sneed, 96 U. S. 69; Edwards v. Kearzey, Id. 595; Louisiana v. New Orleans, 102 id. 203; Antoni v. Greenhow, 107 id. 769.

⁵ Curran v. Arkansas, 15 How. 304; Von Hoffman v. Quincy, 4 Wall. 535; Taylor v. Stearns, 18 Gratt. 244; The Homestead Cases, 22 id. 266.

but delay the remedy provided by the contract, are changes in the terms of the contract which impair its obligation.¹ In the Virginia Coupon Cases,² and in McGahey v. Virginia,³ the law of Virginia which changed the contract of these coupons, which were made receivable in the payment of taxes to the State, and forbade their reception for taxes, was a clear impairment of the obligation of the contract, and was so held by the Supreme Court of Virginia and by the Supreme Court of the United States. In all of the above cases the prohibition applies to the obligation of implied as well as express contracts.⁴ It may be well to say that a law of Virginia, passed prior to March 4, 1789, which impaired a pre-existing contract, was held to be a valid law, because made before the Constitution went into effect.⁵ Does the prohibition to the States, to pass any law impairing the obligation of a contract, involve the inference that Congress may pass such laws. Clearly not, except as to the grant of power to Congress to pass uniform bankrupt laws.⁶ The State, because of this prohibitory clause, cannot pass a bankrupt law, but Congress under the express grant of power may do so. On this subject reference may be made to what has been said before.⁷

The remaining words of these prohibitions are: "No State shall grant any title of nobility." This prohibition applies equally to Congress.⁸ The obvious purpose of these two prohibitions was that the States of the Union were to continue republican States. The guaranty clause shows this.⁹

¹ Sturges v. Crowninshield, 4 Wheat, 200; Ogden v. Saunders, 12 id. 213; Planters' Bank v. Sharp, 6 How. 301; Hawthorne v. Calef, 2 Wall. 10; Taylor v. Stearns, 18 Gratt. 244.

⁷ Ante, Bankruptcy. See also Cooley on the Constitution, 343, 344; Gunn v. Barry, 15 Wall. 610, and the dissenting opinion in Sinking Fund Cases. 99 U. S. 700.

Baron Montesquieu had declared, and his statement was quoted with approbation in the Federalist, that a union between republics and monarchies was inconsistent. Nobles are non-elective, their political power being hereditary. The existence of such a class would be inconsistent with our republican system in State and Federal government. The consideration of this article calls for an observation upon the effect of its provisions upon the broader question of the relations of States to the Union.

We come now to qualified limitations upon the powers of the States. Those in the first clause of this section were absolute. The second clause of this section provides: "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 inspection laws: and the net produce of all duties and imposts, 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 revision and control of the Congress." An analysis of this section results in this: First. The State is prohibited from laying any duties on imports or exports, without the consent of Congress. Second. Despite this prohibition the State may lay such imposts or duties where absolutely necessary for executing its inspection laws. Third. The net produce of all duties and imposts laid by any State shall be for the use of the treasury of the United States. Fourth. All such laws shall be subject to the revision and control of Congress. It will be noted that under the first head a State may lay duties on exports as well as imports with the consent of Congress. Congress cannot lay any duties or tax on articles exported from any State.¹ This power to lay imposts or duties on imports might infringe upon the power of Congress to lay duties on imports, and it is therefore intended that the State should not exercise this power, which might so conflict with the revenue power of Congress, without its consent. And further, lest there should be conflict

after the consent of Congress was given, the saving clause was inserted, that the net produce of all such duties and imports (that is, after paying the expenses of collection) should go into the treasury of the United States. This prevented the State from using this power for revenue purposes. The purpose the States might have in view in such duties was intimated to the convention as being the protection of their own products against foreign competition. The case of Brown v. Maryland¹ decided that a license tax imposed by the State of Maryland after they pass the custom-house was a tax and duty on imports, and being without the consent of Congress was unconstitutional and void. The court held that a duty on imports then was not merely a duty on the act of importation, but is a duty on the thing imported; a duty on the articles entering the country, as well as a duty on the article after it has entered the country. The words "exports" and "imports," here used, mean to and from the foreign country.²

It does not seem that this power of the State has ever been exercised under any consent of Congress. Under the second head we have the exceptions of such imposts or duties on imports or exports as may be absolutely necessary for executing the inspection laws of a State. The language and the decisions under it make this exception free from the necessity of the pre-consent of Congress. In the great case of Gibbons v. Ogden,³ the Chief Justice said that the power to pass inspection laws was not derived from the power to regulate commerce, but was distinct from it; and also that "the object of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for exportation; or it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for

that purpose. They form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to a general government; all which can be most advantageously exercised by the States themselves." In the case of Turner v. Maryland,¹Mr. Justice Blatchford, in a very elaborate opinion, resting upon the decision and language of the opinion in Gibbons v. Ogden, supra, says that these laws "may have a remote and considerable influence on commerce;" and decided, speaking for the court, that the function of inspection is not only to inspect the article produced, but the package containing it, and therefore that involves the inspection of the "quality of the article, form, capacity, dimensions and weight of package, mode of putting up and marking and branding of various kinds," and that they may lawfully require the article to be brought to a State warehouse for inspection. All of these provisions (as to which the opinion goes into great detail) are proper for inspection laws, and taxes and duties imposed upon articles so to be exported are valid because within the exception of this clause of the Constitution. In the case of People v. Compagnie, etc.,² the Supreme Court sanctioned the decision just cited, and decided further that it applied exclusively to the inspection of personal property. But let it be observed that these inspection laws, and the duties on imports or exports connected therewith, do not need the pre-consent of Congress; that the last sentence of this clause clearly makes them subject to the revision and control of the Congress. In the case of Turner v. Maryland, supra, the inspection laws as to tobacco adopted by the State of Maryland as well as an outage charge were held to be constitutional. The revision of these laws and control of them by Congress was intended to prevent the inspection power of the States by provisions that might conflict with the revenue and commercial powers of the Federal government. It is not very clear whether the net produce

which is to be paid into the treasury from such duties and imposts applies to those laid for executing its inspection laws, but it is probable that the fair construction applies to those imposts or duties which are to be laid only with the consent of Congress, as well as those which are laid in respect to the execution of the inspection laws.

"No State shall, without the consent of Congress, lay any duty of tonnage." The power to lay duties on tonnage is clearly included in the eighth section of the first article of the Constitution. If the States could lay a duty on tonnage, it would interfere with the power given to Congress; therefore this prohibition on the State's exercise of the power is subject to the pre-consent of Congress. A duty on tonnage is not only a revenue, but a commercial measure, because to regulate commerce, as we have seen, means to regulate navigation. A duty on tonnage meant to prohibit the States from levying a duty on vessels, measured by their capacity, or upon them as instruments of commerce, or upon their privilege of trading to any port. These all relate to commerce, to vessels as the instruments of commerce with foreign nations or among the States, and belong to Congress under the powers just referred to.¹ A State may tax the ship as property,² but cannot tax the vessel by the ton.³ So demanding of a vessel on landing a sum proportioned to its tonnage is within this prohibition.⁴ But a wharfage due is not a tax and may be laid in proportion to tonnage.⁵

The clause proceeds: No State "shall keep troops or ships of war, in time of peace," without the consent of Con-

¹ Cannon v. New Orleans, 20 Wall. 577; State Tonnage Tax Case, 12 id. 204; Steamship Co. v. Tinker, 94 U. S. 238; Peete v. Morgan, 6 Wall. 31; S. C., 19 id. 581; Steamship Co. v. Port Wardens, 6 id. 34; Transportation Co. v. Wheeling, 99 U. S. 273.

² Transportation Co. v. Wheeling, 99 U. S. 273; St. Louis v. Ferry Co., 11 Wall. 423.

⁴ Steamship Co. v. Tinker, 94 U. S. 238, supra; Peete v. Morgan, 19 Wall. 581, supra; Cannon v. New Orleans, 20 Wall. 577.

gress. This was to prevent the States from being on a war footing. If they had this power it might be dangerous to their neighbors in the Union or incite them to belligerency with foreign powers, either of which would involve the Union in the hostile action of any one of its members, which would be contrary to the nature of the alliance between them. But this does not mean to forbid the use of the militia, which is left completely under the control of the States, by the previous provisions of the Constitution, except when they are called forth to execute the laws of the Union.¹ This is the more obvious from the latter part of this clause, which forbids the State to engage in war, unless invaded or in such imminent danger as will not admit of delay. So that it is clear a State may engage in war when actually invaded, etc.; but how could it engage in war in either event unless it had an armed force; and that such was within the contemplation of the framers of the Constitution is obvious from the two important numbers of the federalist to which reference has been made in a former part of this work.²

The remaining prohibition of this clause is that no State shall, without the consent of Congress, "enter into any agreement or compact with another State, or with a foreign power." The object of this is very clear. An agreement or compact with another State, of a political character, might be in conflict with the agreement and compact of the Union. A compact as to boundary might enlarge or decrease one or the other State, and might in this way transfer territory from one to the other, which, under the fair interpretation of the subsequent provisions of the Constitution, should require the consent of Congress. Under the pretext of settling a boundary line, one State might be materially increased and another diminished, which would change the proportion of representation in the House of Representatives by the action of two States without the consent of the oth-

ers. It was a wise policy, therefore, which prohibited any such action by two States without the consent of the Congress.¹ In closing this comment upon the prohibitions upon the States, it is proper to say that but for this prohibition the States were in condition to have exercised concurrently with Congress all the chief powers which were vested in it by the Constitution, and the purpose of the Constitution was to maintain in their integrity the powers which the States had conferred upon the general government without the right of any one State to interfere with them. These are all of the prohibitions that were made under the original Constitution, and are those referred to in the tenth amendment to the Constitution by the words: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The war between the States which began in 1861 and ended in 1865 suggested, in the course of a few years, three amendments: the thirteenth, fourteenth and fifteenth, which contain further and important limitations to the powers of the States, to which attention will now be called. Much has been said as to the character of the powers delegated to the United States as compared to those reserved to the States, and it has been concluded by some writers that the States, by the Constitution, have been reduced to municipalities, while all the chief sovereign powers have been granted to the Federal government. It is said the war power the treaty power, the commerce power, and the like, are national powers which belong to the Federal government and are denied to the States.

Looking to the number of powers assigned to the two governments in our system, all of which are sovereign powers, the State has unquestionably the large majority of them. The nature of the two classes gives the pre-eminence in the reach and majesty of power to the Federal government. The State in the management of internal polity has a wide field,

but these domestic objects are not as striking in their dignity as the range of Federal polity over the affairs of a continent, and the international relations of the continent to the outside world. But in their essential sovereignty of dominion they are alike and are of equal dignity.

The real question in the comparison of the two classes is as to the holders of the respective powers. The Federal government holds the one class and the State governments the other class. Back of both is the reserved authority of the States, as delegators of both classes, and as the original source of all powers belonging to both governments. The powers held by the Federal and State governments are delegated to them by the States, as the Bodies-politic, with essential sovereignty, from which emanate the functional capacities of each of these governments. That this is so, in fact, is demonstrated by these sections of the Constitution which prohibit the States from the exercise of certain functions assigned to the Federal government. Each prohibition is a negation, with the affirmation that except for the self-denial each State could exercise the forbidden power. The State has all the potentiality to exercise the power, else why forbid its exercise by the State? If the nature of the Federal system shriveled the statehood into such proportion that the State had no potentiality to make war or treaties, why forbid it to do so? The prohibition implies the potentiality, which must be prevented from exercise by a self-denying stipulation. Annul the prohibition by striking out this section, and these powers would belong to the State governments concurrently with the Federal government. The States granted them to the Federal government and denied them to the State governments, because the States wisely declared such powers were better delegated exclusively to the Federal government than to the State governments concurrently with that government, or by exclusive reservation.

So far, therefore, from these sections supporting the idea that the States are dwarfed into municipalities by them,

they prove that the States, as Bodies-politic, are masters of both governments, and that the State has equal potentiality with the Federal government to hold and exercise these tremendous powers; but the exercise of them by the State governments has been prohibited by the Constitution because of the relations of the States to each other. The fact, therefore, that such powers had been delegated to the Federal government and the exercise of them denied to the State governments for reasons of public policy does not disparage the potential capacities of the State governments, nor does it, a fortiori, derogate from the essential sovereignty of the States, as Bodies-politic, whose mandatory authority, expressed in the Constitution, is the source of the powers conferred on the Federal government, and of the prohibition of the same to the State governments.

Referring to what has been said in another place on the general character of these amendments, and of the war which preceded their adoption, it is proposed now to discuss the effect of these amendments upon the powers of the States. On the 1st of February, 1865, Congress passed a resolution proposing the thirteenth article of amendment to the Constitution. It was ratified by the legislatures, and was proclaimed by the Secretary of State as a part of the Constitution on the 18th day of December, 1865. It is in the following words: "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." Section 2. "Congress shall have power to enforce this article by appropriate legislation."

The date of the passage of the resolution was more than two months before the surrender of the armies of the Confederate States, but it was ratified many months after the actual close of the war. The Southern States recognized that the doom of slavery was pronounced by the failure of their cause; and a number of the Southern States ratified the article with that conviction, so that both sections adopted

the amendment as a declaration of the fact, which was the inevitable result of the downfall of the Confederacy. Slavery had long been an apple of discord between the two sections. The restoration of the Union in peace required that the institution should be abolished in order to harmony in the Union. When adopted by the States it was a new stipulation of the compact of the Union that slavery should cease everywhere. The language of the article is copied from the celebrated Ordinance of 1787. The original Constitution had agreed that the slave trade should be prohibited after the 1st of January, 1808. This amendment prohibited the existence of the institution of slavery after its adoption. It declared that slavery should not exist within the United States, i. e., in any one of the States of the Union, and that the prohibition extended to any place subject to their jurisdiction. It prohibited it in the States where it was subject to the jurisdiction of each State, and then prohibited it in any place subject to their jurisdiction, i. e., the jurisdiction of the United States. This includes the District of Columbia, courts, arsenals, Territories, etc., which were not subject to the jurisdiction of any single State, but to their jurisdiction � the jurisdiction of the many States united.

The amendment, therefore, in emphatic terms recognizes that slavery could be abolished in the States and in the places subject to the jurisdiction of the United States only by an amendment of the Constitution, and thus it implies that it could not have been done by an act of Congress. The second clause of the amendment gives to Congress the power to enforce this article by appropriate legislation. The meaning of this phrase is substantially the same as the words "necessary and proper" used in the legislative article,¹ and the use of the word "appropriate" confirms the definition which was given to those words by Judge Story and affirmed in the Legal Tender Cases;² but as to the power given to Congress in this clause, reference may be had to what has been

said in another place.¹ It seems to have been thought by Congress that it justified the passage of the Civil Rights Act of March, 1875, which sought to secure the social and civil privileges of freedmen, but that law was hold unconstitutional. In the Civil Rights Case² it was held that the

amendment related only to the status of slavery and its incidents and to their abolition, and did not relate to race discrimination in inns, cars, places of amusement, etc. So much for the thirteenth amendment.

The fourteenth amendment was ratified in 1868. It was proposed June 16, 1866. It was not adopted for some time, and the question arose whether three-fourths of the States, leaving out the States which seceded, would be sufficient to ratify the amendment. The Secretary of State held that it must be ratified by three-fourths of all the States, including those which had seceded, and this view prevailed. Before considering its clauses in detail it is pertinent to say that while it was under discussion in Congress the States which had seceded were excluded from the halls of Congress. The non-seceding States acted upon a clause which proposed as part of this amendment the following words: "Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States, equal protection in the right of life, liberty and property." This was rejected. Had it been adopted it would have given Congress direct power to secure to citizens and persons the privileges and immunities and protection named in the amendment. The objection to it, when compared with the language of the amendment as ratified, is very striking and suggestive of the true meaning of the article adopted. That article, as we shall see, forbade the States to make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, saying nothing of the citizens of each State in the several States. The amendment, as adopted,

forbade the State to deprive any person of life, liberty or property, without due process of law, or to deny to any person within its jurisdiction the equal protection of the law. The fifth clause of the amendment adopted gave to Congress the power to enforce the non-abridgment by the State of privileges and immunities, etc. The above-named proposed amendment gave to Congress the power, by affirmative legislation, to do these things; while the amendment as adopted gave only to Congress the power to negative the action of the State abridging or denying these privileges. The first section of the fourteenth amendment is in these words: "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 citizens 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 jurisdiction the equal protection of the laws." The first sentence clearly refers to the decision in Scott v. Sanford.¹By that decision in 1857, the Supreme Court, two justices dissenting, held inter alia that Dred Scott, being a negro, was not a citizen of a State within the meaning of the clause which gave jurisdiction to the Federal courts in cases between citizens of different States. It is a part of the history of the times that this decision excited great opposition. The decision itself was never departed from by the Supreme Court, but, as a part of the policy of the non-slaveholding States, this provision of the amendment was intended to reverse the decision in that case, and to establish the right of citizenship of both races. It will be perceived that it gives citizenship to all persons born or naturalized in the United States and subject to the jurisdiction thereof, � citizenship of the United States and citizenship of the State wherein they reside. This would give to the negro the status of citizenship in the State where he resided, and make him properly a party ¹ 18 How. 393.

to a suit in the Federal court between himself and a citizen of another State; and furthermore would give to him, as such, all the privileges and immunities of citizens in the several States.¹ Under this clause an Indian who belongs to a tribe and is born within the United States, the tribe being a dependent nation, is not born within the jurisdiction of the United States, and is not entitled to be a citizen under this clause, though he separates from his tribe and lives among the whites, unless he becomes naturalized.² This clause speaks of citizenship for the person, � citizenship of the United States and citizenship of the State. The individual Las rights as a citizen of the State, which, as a citizen of the United States, he does not have, and vice versa. It becomes very important, therefore, that these diverse citizenships should be well understood because of the following provisions.

The next clause of this amendment is: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." What, then, are the immunities of men as citizens of the United States? In the case of Smith v. Turner,³ Chief Justice Taney said: "For all the purposes for which the Federal government was established, we are one people and citizens of the United States." Mr. Justice Miller, in delivering the opinion of the court in the Slaughter-House Cases,⁴ quoted the language of Judge Taney with approval, that the privileges and immunities of men as citizens of the United States were those "which owe their existence to the Federal government, its national character, its Constitution or its laws." And so, in Crandall v. Nevada,⁵ the court held that the right of free transit from State to State, or from any State to the seat of government or to the ports of the United States, were rights appertaining to the citizen as a citizen of the United States; and that all rights claimed under treaty, or on the high seas,

or in foreign countries; rights under the Constitution and its amendments; the right to come to the capital or to any seaport; rights of commerce of any State with foreign countries, are those rights which belong to men as citizens of the United States. These rights and privileges pertaining to him as a citizen of the United States, under the Constitution, laws and treaties, are properly placed beyond the power of a single State to abridge. But it has been decided that a State may abridge the privileges and immunities and rights which belong to the man as a citizen of the State. Thus the regulation of the business of the butchers in New Orleans was a regulation of a right pertaining to the citizen as a citizen of the State, not of the United States.¹ Congress can take no action under this fifth section of the fourteenth amendment to protect a citizen in his rights as a citizen of a State. They are exclusively within the State power.² A citizen of this country, therefore, has two guardians; his privileges and immunities are doubled. Those which are secured under the Constitution and jurisdiction of the Federal government belong to him as a citizen of the United States. Those which are secured to him under the Constitution and laws of his State belong to him as a citizen of the State. It has been decided as a general principle that this clause of this amendment does not limit the police powers of the States, nor affect the State organism or its functions.³ Thus, the privilege to practice law in the State court belongs to him under the citizenship of the State; in the United States court, as a citizen of the United States.⁴ All limitations upon this privilege in the State courts were unaffected by this amendment.⁵ So in respect to suffrage, which is exclusively under State jurisdiction, except as affected by the fifteenth amendment. The right of suffrage

¹ Slaughter-House Cases, supra. ² United States v. Harris, 106 U. S. 629; Presser v. Illinois, 116 id. 252. ³ United States v. Cruikshank, 92

is a State privilege, belonging to State citizenship, and is exclusively under State jurisdiction. The United States can confer no such privilege within a State.¹ So as to the right of a physician to practice his profession. That is a right qua citizen of a State, which is not touched by this amendment.² And so, though a doubt was expressed in one case (Supervisors v. United States³), yet in Mugler v. Kansas⁴ and in Eilenbecker v. District Court of Plymouth County⁵ it was held that a State might forbid an owner to sell liquor or to manufacture it, and might destroy it as a nuisance, without compensation, and prohibit its uses; and that a proceeding on contempt for suppression of the traffic was valid without jury trial. So a greater penalty for fornication between African and white, than between persons of the same race, is valid.⁶ Such legislation by the State trenches upon no right or privilege of the guilty parties as citizens of the United States. So police regulations as to laundries, prohibiting the use of them at certain times and at certain places, are valid.⁷So any denial of a right in a State court, which by any one of the ten amendments is forbidden, is not unconstitutional, for those amendments are limits upon Federal power only, and the State court may do, contrary to the terms of those amendments, what the Federal court is forbidden to do.⁸

The next clause is more sweeping in its operations, for it drops the word "citizen" and uses the word "person." "Nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This applies to persons as such, and not to persons as citizens.

¹ Minor v. Happersett, 21 Wall. 129; Crowley v. Christensen, 137 U. S. 86; Williams v. Mississippi, 170 id. 213.

⁷ Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, Id. 703; Holden v. Hanry, 168 id. 366.

citizens; i. e., persons, whether they be citizens or not citizens. In the case of Corfield v. Coryell,¹ Judge Washington, in commenting upon the words "privileges and immunities," used in another article of the Constitution,² says: "The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent and sovereign. What these fundamental privileges are, it would perhaps be more tedious than difficult to enumerate. They may, however, be comprehended under the following general heads: protection by the government; the enjoyment of life and 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 prescribe for the general good of the whole." This definition was adopted in the main in the case of Ward v. Maryland,³ and in Paul v. Virginia.⁴ The Supreme Court in the Slaughter-House Cases⁵ sanctioned this definition and added: "Its sole purpose was to declare to the several States that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction." These fundamental privileges to which Judge Washington refers would seem to include those named in the clause under consideration: the right to life, liberty and property, of which the person shall not be deprived without due process of law, and the right of every person within its jurisdiction to the equal protection of the laws. It would seem, therefore, to be a just construction of this article that every person, whether

a citizen or not, and no matter where residing, is protected by this clause against any action by a State which will deprive him of life, liberty or property without due process of law, or deny to any person the equal protection of the laws.

If it be asked why the Constitution of the United States should intervene so as to limit the action of the State toward any person in the manner described in the article, the answer is clear. In the free intercommunication provided for between the States of the Union, a person resident in one State might often be subject to the operation of the laws of another where he was temporarily sojourning, and should have the protection of the Constitution of the Union against any hostility on the part of the State upon his rights and his privileges, and his equal right to the protection of its laws. As might be inferred from the rejection of the proposed amendment to this fourteenth article, it was not intended to give to Congress the power, by affirmative action, to afford this protection within the States, but simply to give to Congress the power to nullify any such hostile action by the State through its laws. A few cases bearing upon this clause of the Constitution, in addition to those already cited, may be referred to. In the Laundry Cases,¹ supra, municipal regulations as to laundries, making no discrimination between persons, was held to be valid; but in the subsequent case of Yick Wo v. Hopkins,² where the municipal discrimination between Chinese and whites in the regulation of the laundry business, denying the Chinese the rights accorded to the whites, the law of the municipality was held to violate this second clause as to the equal protection of the laws to all persons; and where a State officer in the administration of the law deprived a person of this equal right, it was held to be the State that did it.³

But where private parties, innkeepers, proprietors of places of amusement, etc., were denied these privileges, it was held that it was not the State that discriminated, but private

parties. The State does not deny � the private party does deny � equal privileges;¹ and it was decided that the Civil Rights Bill passed by Congress, giving to negroes equal privileges with white people, in such cases was unconstitutional and void.

In the late case of Mattox v. United States² the Supreme Court decided upon the construction of a clause in the sixth amendment requiring the accused to be confronted with the witnesses against him; and it was held that the stenographic notes of the evidence of a witness in living presence on the first trial could be used on the second trial. The court upon a review of the contradictory decisions in the States upon this question held that these amendments in favor of personal liberty were to be interpreted "in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject, such as his ancestors had inherited and defended since the days of Magna Charta." There was a strong dissent by three of the judges.

The effect of this clause upon railroad companies has been considered in several cases. In the case of Railroad Co. v. Mississippi,³ where the law of the State required railroad companies carrying passengers to provide equal but separate accommodations for the white and colored races, the Supreme Court of the State held that the law applied only to the carrying of passengers within the State, and not to interstate carriage. The Supreme Court adopted the construction which the State court had put upon its own law, and held that the law, limited to the carrying of passengers within the State only, was constitutional and valid. The court differentiated the case from the cases of Hall v. Decuir⁴ and Railroad Co. v. Illinois,⁵ in which cases the State law had undertaken to regulate the interstate carriage of passengers,

and in this respect differed from the case of Railroad Co. v. Mississippi, supra. In the late case of Plessy v. Ferguson¹it was decided that the law of Louisiana requiring railroad companies to provide equal but separate accommodations for the white and colored races on their trains, and providing that no person should be permitted to occupy seats in other coaches different from the seats assigned to them on account of the race to which they belong, and requiring the officers of the trains to assign each passenger to the coach designated for the race to which he belongs, and imposing fines or imprisonment upon passengers insisting upon going into any other car than the one assigned to his race, and conferring upon the officers of the trains the power to refuse to carry passengers refusing to occupy coaches assigned to them, and exempting the companies from liability for such refusal, were not in conflict with the thirteenth or fourteenth amendments to the Constitution. But this was on the ground that the Louisiana law applied only to the transportation of passengers within the State, and therefore did not conflict with the interstate commerce power of Congress. The court referred to a large number of cases, and differentiated the case of Railroad Go. v. Brown,² where a railroad company, incorporated by Congress, was granted a charter upon condition that no person should be excluded from the cars on account of color; and the court held that there was no right to exclude an African from any part of the train. The language of Justice Bradley, in the Civil Rights Case, was quoted in these words: "The fourteenth amendment does not invest Congress with power to legislate upon subjects which are within the domain of State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of State laws, ... when these are subversive of the fundamental rights specified in the amendments. Positive rights and privileges are undoubtedly secured by the four-

teenth amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges and by power given to Congress to legislate for the purpose of carrying such prohibition into effect.'' This language of Justice Bradley confirms what has been already said as to the effect of the rejection in Congress of the proposed amendment to this fourteenth article. The court refers to a large number of cases in the States to the same effect. The court, in the last case of Plessy v. Ferguson, supra, on page 551, combats the objection that this enforced separation stamps the colored race with the brand of inferiority, and holds that it does no such thing, but simply recognizes that social prejudices cannot be overcome by legislation, and that equal rights are not to be secured to the negro by an enforced commingling of the races, and refers to the case of The People v. Gallier.¹

It has been attempted to construe the fourteenth amendment so as to deny to the State any violation of the equality of taxation, but the Supreme Court has held that the fourteenth amendment has fixed no iron rule for taxation. A municipality may tax adjacent owners for street improvements after due notice and hearing.² It may assess lands with a special tax for drainage of swamps, which affect the value of such lands.³ The State may make water rates a charge upon property preferred to other liens.⁴

The effect of this amendment upon the police power of the States was the subject of an able discussion in the case of Barbier v. Connolly.⁵ Under an ordinance of San Francisco, the carrying on the laundry business was prohibited within certain defined limits between certain hours. It did not discriminate between classes of persons engaged in the business, as in the case of Yick Wo v. Hopkins, supra.⁶ The Supreme

² Barbier v. Connolly, 113 U. S. 27; Bell's Gap R. Co. v. Pennsylvania, 134 id. 232.

Court held that this provision was a police regulation not in conflict with the fourteenth amendment. Mr. Justice Field said that this amendment in the clause under consideration "undoubtedly intended that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of

the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses." But neither the amendment � broad and comprehensive as it is � nor any other amendment was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity. This decision was followed in Soon Hing v. Crowley,¹in which it was determined that a municipal ordinance applying to the laundry business as to time and place � and to no other � was not embraced within the language of the amendment, because the two occupations were not of the same character, and different regulations were proper for these distinct employments. The operations of the law must not be different in respect to the same employment; if so, it would deny the equal protection of the laws to the two classes. The same general doctrine was applied to the ques-¹ 113 U. S. 703.

tion of taxation in the case of Railroad Co. v. Pennsylvania.¹ In that case a tax was imposed upon the face value of bonds instead of upon their actual value, which was valid, as the State courts decided under State law. Mr. Justice Bradley said: "But, be this as it may, the law does not make any discrimination in this regard which the State is not competent to make. All corporate securities are subject to the same regulation. The provision in the fourteenth amendment ... was not intended to prevent a State from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness or not allow them. All such regulations and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the State legislature, or the people of the State in framing their Constitution. But clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition. It would, however, be impracticable and unwise to attempt to lay down any general rule or definition on the subject, that would include all classes. They must be decided as they arise. We think that we are safe in saying that the fourteenth amendment was not intended to compel the State to adopt an iron rule of equal taxation."

¹ 134 U. S. 232. See cases cited, National Bank v. Commonwealth, 9 Wall. 353; Dollar Savings Bank v. United States, 19 id. 227: Davidson v. New Orleans, 96 U. S. 97;

King v. United States, 99 id. 229; Hagar v. Reclamation Dist. No. 1, 111 id. 701; Walston v. Nevin, 128 id. 575. Also Smyth v. Ames, 169 id. 466.

Accordingly it was held that taxes may be unequal on different classes of persons or subjects without offending the terms of this amendment. If the tax-payers are in like condition and subject to like conditions, or the subjects of taxation are the same, the doctrine of equality may be invoked as controlling them, though this is not clearly established. "But the amendment does not touch the power of a State to adopt its own system of taxation, however unequal it may be, if it does not operate unequally upon the same persons or subjects of taxation in precisely like conditions. Thus a State may assess lands for drainage of swamps which affect them.¹ For the same reason a tax upon an adjacent owner for opening streets, after clue notice and hearing, would be upheld as not contrary to the provisions of this amendment. Thus, in Provident Institution v. Mayor,² it was held that an act making water rents and charges upon lands in a municipality a lien prior to all incumbrances in the same manner as taxes was no violation of the fourteenth amendment. It declares that no State shall deprive any person of property without due process of law, and the court declared they were not prepared to say the giving to such lien priority over liens already created by mortgage or otherwise would be repugnant to this article. Cases have arisen on the procedure in the States to condemn private property for public use. Thus, in the case of Railroad Co. v. Iowa,³ the question arose whether the right of a party could be affected by mandamus in a State court where there was a denial of the right of trial by jury, and whether there was due process of law in denying a jury trial. The court decided that this did not offend against the provisions of the fourteenth amendment. The court said: "It is clear that the fourteenth amendment in no way undertakes to control the power of the State to determine by what process legal rights may be asserted or legal objections enforced, provided the methods

of procedure give reasonable notice and fair opportunity to be heard before the issues are decided." In a later case of Eldridge v. Trezevant,¹ the Constitution and laws of Louisiana, as interpreted by its highest court, permit the taking, without compensation, of the land of private parties for the construction of the public levee on the Mississippi river. The court held that this provision of statute law did not offend against the provision of the fourteenth amendment, unless in its administration a measure of justice was accorded to a citizen of another State different from that accorded to a citizen of Louisiana, and that the provisions of the fourteenth amendment do not apply to and override public rights existing in the form of servitudes or easements which are held by the courts of a State to be valid under its Constitution and laws.²An interesting class of cases arise in respect to corporations under this amendment. We have seen that a corporation is held to be a citizen within the meaning of the clause conferring jurisdiction on the United States courts in cases between citizens of different States;³ and that this is because a corporation, though a legal entity, distinct from its corporators, represented the interests of the individual corporators as to property and rights, and that the body of corporators, if members of the partnership, would be entitled to sue and be sued in the United States courts if citizens of the different State from that of the other party, plaintiff, or defendant. The meaning of the Constitution was carried out by considering the corporate entity representing these shareholders as citizens of the State which chartered it. A corporation, whether municipal, joint-stock or eleemosynary, is the representative of the private interests and rights of persons. To touch the corporate right or interest by hostile legislation is to touch the private interest of the persons interested in the corporation. It was therefore just and proper that the court should hold that this clause of the fourteenth

But when the question of equality of burden upon the property of the corporation and the property of an individual arises, it is proper to take into view that the corporation and the individual do not stand upon the same plane as to their rights. The corporate rights are special privileges conferred by a charter � privileges which do not appertain to the individual. There may, therefore, be reason and justice, in order to attain an absolute equality of burdens between a corporation and an individual, to take into consideration the special privileges conferred upon the one and denied to the other. A tax on a telegraph line running through different States, in the proportion which so much of the line as is within any State bears to its whole line, was held to be constitutional in the case of Telegraph Co. v. Massachusetts.²

The tax on corporations has in many cases been assessed differently from taxes upon the individual. In Home Ins. Co. v. New York³ a state tax upon all corporate franchises of corporations in the State, or created in another State and doing business in the State, was measured by the dividends of the corporation in the current year, and was held to be constitutional. The court, referring to a number of cases, said: "But the amendment does not prevent the classification of property for taxation, subjecting one kind of property to one rate of taxation, and another kind of property to a different rate � distinguishing between licenses, franchises and privileges, and visible and tangible property, and between real and personal property. Nor does the amendment prohibit special legislation. Indeed, the greater part

¹ Santa Clara County v. Railroad Co., 118 U. S. 394; Silver Co. v. Pennsylvania, 125 id. 181.

² 125 U. S. 530. See also Butler v. Eaton, 141 U. S. 240; Railroad Tax Cases, 92 id. 575; Railroad Co. v. Backus, 154 id. 438; Railroad Co.

v. Gibbs, 142 id. 336; Maine v. Railroad Co., 142 id. 217; Columbus Southern Ry. Co. v. Wright, 151 id. 470; New York v. Squire, 145 id. 175. ³ 134 U. S. 594.

of all legislation is special, either in the extent to which it operates or the objects sought to be obtained by it. And when such legislation applies to artificial bodies, it is not open to objection, if all such bodies are treated alike under similar circumstances and conditions, in respect to the privileges conferred upon them and the liabilities to which they are subjected. Under the statute of New York all corporations, joint-stock companies and associations of the same kind are subjected to the same tax. There is the same rule applicable to all under the same conditions in determining the rate of taxation. There is no discrimination in favor of one against another of the same class.¹ In this decision the court referred to the reason above suggested for the difference between the tax laid upon an individual and upon a corporation, arising from the fact that one has artificial rights and privileges conferred by law which the other has not.²In Railroad Co. v. Gibbs³ the court held that a law of South Carolina requiring the expenses of a State railroad commission to be borne by the several corporations owning or operating railroads in the several States was not in conflict with this amendment. The burden was laid for services connected with the railroad corporations which were to bear them. There was no inequality, therefore, in subjecting these corporations to, and exempting others from, the burden. The case of New York v. Squire⁴ is in accordance with the former decision. In Railroad Commission Cases⁵ it was decided that a charter which grants a railway company the right to fix, regulate and receive the tolls and charges to be received by them for transportation, and which confers upon the directors the power to make by-laws, rules and regulations touching the disposition and management of the

¹ Society for Savings v. Coite, 6 Wall. 534; Barbier v. Connolly, 113 U. S. 29; Soon Hing v. Crowley, Id. 703; Mo. Pac. Ry. Co. v. Humes, 115 id. 512; Mo. Pac. Ry. Co. v. Mackey, 127 id. 205; Minneapolis Ry. Co. v. Beckwith, 129 id. 26.

² Wiggins Ferry Co. v. Railway Co., 142 U. S. 399; New York v. Squire, 145 id. 175.

company's property, and all matters appertaining to its concerns, does not deprive the State of its power to act upon the reasonableness of the charges and tolls so fixed, nor to regulate by a commission charged with the duty of preventing unreasonable rates, and of enforcing reasonable police regulations for the comfort, etc., of travelers. Such power in the State is not offensive to the fourteenth amendment. It belongs to the State to regulate these matters, under what is known as the police power, and this prerogative cannot be granted away, unless by words of positive grant or words equivalent in law.¹ This case was followed by Stone v. Railroad Co.²

So the reasonable regulation by the State of railroad rates, according to long and short haul, is not contrary to this amendment, but if so unreasonable as to violate property rights of the company, such rates may be held void as denying the equal protection of the laws.³ But when a commission is appointed to decide finally as to these things and denies the right of judicial inquiry into the propriety of the action of the commission which is investigating these matters, and denies the right to produce evidence in response to a mandamus against the company, it was held not to be due process of law and the denial of the equal protection of the laws.⁴ But to regulate public carriers for the safety of persons and property is a police power of the State of great importance, and it will not be presumed that it is surrendered if all are put on equal ground. If all in like condition are regulated alike, this amendment will not be violated;⁵ and in Railroad Co. v.

¹ Citing Charles River Bridge v. Warren Bridge Co., 11 Pet. 419; Delaware Railroad Tax Cases, 18 Wall. 206; Bailey v. Magwire, 22 id. 215; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Newton v. Commissioners, 100 id. 548.

keag Mfg. Co., 113 id. 21; Soon King v. Crowley, Id. 703; Mo. Pac. Ry. Co. v. Humes. 115 id. 512.

⁴ Head v. Amoskeag Mfg. Co., 113 U. S. 21; Soon Hing v. Crowley, Id. 703; Mo. Pac. Ry. Co. v. Humes, 115 id. 512.

Mackey, a law of the State of Kansas providing that every railroad company organized or doing business in that State shall be liable for all damages done to any employee, consequent upon the negligence of its agents, engineers or other employees, was held not to deprive a railroad of property without due process of law, nor the equal protection of the laws, and was not in conflict with the fourteenth amendment. The court said that the special character of the legislation did not make it violative of the fourteenth amendment; that the improvement of cities, the opening of streets, the introduction of water and gas, for the safety and convenience of their inmates, and laws for irrigation and drainage, and for the construction of levees and so on, were of like kind and were valid; "and when legislation applies to particular bodies or associations, imposing on them additional liabilities, it is not open to the objection that it denies to them the equal protection of its laws, if all persons brought under its influence are treated alike under the same conditions; but it seems that where the charter of the company protects it in express and clear terms against this interference, such legislation by a state will be invalid, as impairing the obligation of contracts.¹ In all these cases it was held that the railroad company takes its charter subject to the general police power of the State to regulate the rates of charge, and the general management of the railway, looking to the safety and welfare of its people, and that this general power of the State will be constitutionally exercised, unless a charter exemption from future general legislation is granted expressly or by clear implication.² It has not been decided in any of these cases that the State may not bind itself by contract not to regulate the charges of a railroad company.

id. 418; Railroad Co. v. Wellman, 143 id. 339; Railroad Co. v. Bristol, 151 id. 556. ³ 146 U. S. 387.

State had not the power to alienate to a railroad company the public use of Lake Michigan and its bed, that the contract of the State was ultra vires, and that the repeal of the law alienating the public use of the lake did not impair a contract, for it was not valid as such.

A law of the State of Iowa giving double damages against a railroad for cattle killed by it is not contrary to this fourteenth amendment.¹ Nor does this amendment, which inhibits the State from depriving a person of property without due process of law, apply where there is no right of property as to the thing legislated upon.²

§ 390. What, then, is "due process of law" referred to in this section of the amendment? Whatever in the regular administration of law in a State is general and impartial in its operation on all persons is "due process."³ An indictment which is defective in form, though not in substance or in the requirements of the sixth amendment, is within the meaning of "due process;"⁴ but it must, with reasonable certainty, apprise the defendant of the nature of the crime with which he is charged.⁵ Nor is a person denied "due process of law" who is tried and sentenced by a de facto judge of a de jure court.⁶ So trial, without a jury, for breach of a municipal regulation, does not contravene this section.⁷

The statute of limitations fairly operating on the remedy is not repugnant to this clause nor to the one forbidding a State to pass any law impairing the obligation of contracts.⁸And so a law which converts a defendant's appearance in

² New Orleans v. New Orleans Water Works Co., 142 U. S. 79; Williamson v. New Jersey, 130 id. 189; Essex Public Road Board v. Skinkle, 140 id. 334; Com'rs of Laramie County v. Com'rs of Albany County, 92 U. S. 307.

⁷ Natal v. Louisiana, 139 U. S. 621; Murray's Lessee et al. v. Hoboken Land & Improvement Co., 18 How. 272. See also Holden v. Hardy, 169 U. S. 366.

court for the purpose of contesting the jurisdiction of the court, and for that purpose alone, into a general appearance for all the purposes of the suit, does not deny to him "due process of law;"¹ and a statute of a State has been upheld which provided that "not more than two new trials shall be granted to any party in any action at law,"² as also a statute which allowed the State a larger number of peremptory challenges in certain cities, in the organization of juries, than in the counties at large.³ In the case of Louisiana v. Mayor of New Orleans⁴ it was held that the State could take away from a municipal corporation the power of levying a tax to pay a judgment against itself, and by such prohibition the owner of the judgment was not deprived of his property without "due process of law." If a State, through its laws, provides "due process," and does not deny "equal protection," etc., and the State court departs from these statutory provisions by an erroneous decision, there is no relief. The State has not failed to provide "due process," etc., but its court has, against its legal provisions.⁵ In the case of Yick Wo v. Hopkins, Sheriff,⁶ an ordinance of the city of San Francisco vested in the board of supervisors the arbitrary power, without restraint, to give or refuse consent to carry on public laundries, without regard to the competency of persons applying therefor. It was held that the ordinance violated the provisions of the fourteenth amendment by making arbitrary and unjust discriminations. This case is differentiated from Arrowsmith v. Harmoning, supra. In the former, arbitrary discretion is given the board of supervisors to defeat personal right. In the latter, judicial power, by its decision, puts aside the legislative enactment which the State had provided for all alike. Many cases have arisen under this amend-

³ Hayes v. Missouri, 120 U. S. 68. See also Cross v. North Carolina, 132 id. 131; Missouri v. Lewis, 101 id. 22.

ment, deciding what is "due process" in the exercise of "eminent domain." The taking of private property for public use only, on just compensation, is in accordance with Magna Carta. To determine the question whether it is taken for real public use, and what is just compensation therefor, requires "due process of law." Such a taking is an enforced sale to the public of private property, and therefore to take private property for private use or for public use without just compensation is not "due process of law."¹ The same rule of construction given to the fifth amendment in its application to the Federal government applies with equal force to the States in this clause of the fourteenth amendment.²

In Virginia the owner must be fully compensated for the property taken and also damages to the residue of his land beyond the peculiar benefits.³ The compensation to which the owner may be entitled must be provided for by judicial procedure in order to meet the requirement of "due process of law."⁴ The interruption of the use of property without its actual seizure,⁵ as also riparian rights,⁶ and the right to the use of water, are within this clause. This right exists in the government of the United States for the purpose of exercising the powers conferred in the Constitution;⁷ but what should be the limitations of the exercise of such power within the States has been the subject of much controversy.

The destruction of property may be ground for payment, but if destroyed to prevent the spread of fire, either by pub-

¹ James River & Kanawha Co. v. Turner, 9 Leigh, 313; Bloodgood v. Mohawk, etc. R. R. Co., 18 Wend. (N. Y.) 9; Tyler v. Beacher, 44 Vt. 648: Monongahela Nav. Co. v. United States, 148 U. S. 312: Loan Ass'n v. Topeka, 20 Wall. 655; Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403.

513: Cherokee Nation v. Southern Kansas Ry. Co., 135 id. 641; Boom Co. v. Patterson, 98 id. 403.

⁷ Kohl v. United States, 91 U. S. 367; United States v. Gettysburg Electric R. Co., 160 id. 668; Luxton v. North River Bridge Co., 147 id. 337.

lic authority or private persons, it creates no liability under the clause. In such cases fire is a common enemy; � if the enemy has possession of A's house, from which B and C may be assailed, the fortress may be destroyed.¹

In criminal procedure this constitutional right has been frequently invoked. In Hurtado's Case² the Constitution of California authorizing prosecutions for felonies on information rather than indictment, and the statutes passed in pursuance thereof, were upheld as not denying "due process of law" to the prisoner. The rule would be different in a court of the United States under the fifth amendment. A law passed after a crime is committed cannot add solitary confinement until execution to the death penalty, � it is ex post facto; ³ but if after the commission of the offense the law is changed in immaterial respects, this is not ex post facto nor against the provision for "due process of law;"⁴ and so where the law before the commission of the crime made solitary confinement until execution a part of the penalty, the law was held not to be against the eighth amendment, nor the right to "due process of law," provided in the fourteenth amendment.⁵ Nor will mere irregularity in the State procedure, not involving the essential rights of the prisoner, be construed as contrary to "due process of law; "⁶ nor will the due administration of its laws by the State be interfered with.⁷

At the time of the decision of Strauder's Case,⁸ he being a negro, the laws of West Virginia, in effect, provided that no negro should sit on a jury. On the part of the prisoner it was urged that such laws denied to him "the equal protec-

¹ Beach v. Trudgain. 2 Gratt. 219; American Print Works v. Lawrence, 3 Zabr. 603: Jones v. City of Richmond, 18 Gratt. 517. But see Wallace v. City of Richmond, 94 Va. 204.

tion of the laws" as well as "due process of law" secured to him by the fourteenth amendment. He was convicted, and on appeal the court of appeals of the State affirmed the decision of the lower court; but on appeal to the Supreme Court of the United States, under the twenty-fifth section of the Judiciary Act of 1789, the judgment was reversed and the original objection sustained. About the same time a similar case^l arose in Virginia; the law of Virginia did not exclude negroes from the juries. In this case the prisoner, a negro, moved the court to so modify the venire that one-third or some portion of the jury should be composed of negroes. This motion was refused. On petition for removal, under section 641 of the Revised Statutes, the district judge of the United States ordered the case to be docketed in the circuit court of the United States, after refusal to remove had been made by the State court, and under a writ of habeas corpus cum causa took the prisoner out of the custody of the State. Virginia applied for a mandamus to compel Judge Rives, the district judge of the United States for the western district of Virginia, to remand the cause to the State court and deliver up the prisoner to her custody. The mandamus was granted, because there was no ground for removal, since the Virginia law did not exclude negroes from the jury, though the composition of the jury might be only white men. The law, therefore, did not deny equal protection, etc., and the prisoner had no right to demand that negroes should be summoned on the venire, as the fourteenth amendment only required that the State, through its laws, must not exclude them; but if the legislature or courts or executive of the State prevents a jury from being constituted of both races, then the State denies the equal protection of its laws to all its citizens alike, and the case, on petition, under section 641 above mentioned, must be removed, or if not, on conviction, an appeal to the Supreme Court will lie.

In Ex parte Virginia,² Judge Coles, the judge of a county court in the State of Virginia, was indicted in the district

court of the United States for the western district of Virginia, under the act of 1875, for excluding and failing to summon negroes on the grand and petit juries because they were negroes. He was held liable, for he acted for the State, and his action was in effect that of the State in denying the equal protection of its laws, etc. Judges Field and Clifford dissented in strong opinions. In Neal v. Delaware,¹ as the laws of the State of Delaware contained no prohibition against negroes sitting as jurors, on indictment in the State court, the petition of the prisoner (a negro) for removal of the cause under section 641 of the Revised Statutes of the United States to the circuit court of the United States was properly denied, but as the jury commissioners excluded negroes from the juries because of race, the Supreme Court held that the indictment should have been quashed, and the State court having refused to do so an appeal was properly had to the Supreme Court.² In this case the court followed the decision in Ex parte Virginia, supra. These decisions have been re-affirmed in the late case of Chicago, B. & Q. R. Co. v. Chicago.³ but they have not been accepted without criticism by high authority in some quarters. They are largely based on the dissenting opinions of Judges Clifford and Field in Ex parte Virginia, supra, and the objections may be stated as follows:

1st. To remove a criminal case from a State court to a Federal court is neither necessary nor proper.⁴ For if the State court decides against a right secured under the Constitution or laws of the United States, an appeal lies to the Supreme Court under the twenty-fifth section of the Judiciary Act. The removal, therefore, is not necessary for the protection of such right. Nor is it proper ("bona fide appropriate, etc."); for with what propriety can a United States court try a prosecution set on foot by the State under her criminal laws, and for an offense against her laws? Under

what law will the jury be selected? challenges made? appeals allowed? and in case of conviction who may pardon? the President of the United States or the Governor of the State?

2d. The amendment protects rights, but does not grant political power. If rights be not equal because power is not (as was argued), the negro must, not may, be on every jury to try negro or white; and so if the exclusion of the negro from a jury is the denial of equal protection, is not his exclusion from the office of judge, member of the legislature or executive the same? Must the State make the negro eligible to all of these in order to equality? If not, why as to juries?

3d. If a like constitution of juries for both races be not equality, how is it to be attained? Must all the jury for a white man be white? and for a negro all be negroes? or how many? and if they must not (as the court admits), how is practical equality reached by a "May?" and if such constitution of the jury be essential to equality, how shall a male jury try a female? or adults try an infant? or an American citizen a Chinaman? Equality to persons is secured by the amendment. How then as to a corporation? It cannot serve on a jury.

4th. When the fourteenth amendment was adopted, the negro had no right to vote, and, until adopted, no right to hold office, if denied by the States. It may well be asked what "equal protection" could he have, with no vote in making the laws? Yet with no such power, with absolute disfranchisement, the fourteenth amendment assumed that "equal protection" to the negro might be secured without any political power; for if not denied by the refusal of suffrage, how could it be so denied by excluding him from the court and jury? When the fifteenth amendment was adopted, it secured to him suffrage, but nothing else.

5th. These decisions, it is claimed, make the negro a favored class. Foreigners, women and children, non-freeholders, etc., may be tried and have no peer on the jury, but a negro cannot be.

9. Nec nos nec ballivi nostri seisiemus terrain aliquam nec redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum reddendum; nec pleggii ipsius debitoris distringantur quamdiu ipse capitalis debitor sufficit ad solutionem debiti; et si capitalis debitor defecerit in solutione debiti, non habens unde solvat, pleggii respondeant de debito; et, si voluerint, habeant terras et redditus debitoris donec sit eis satisfactum de debito quod ante pro eo solverint, nisi capitalis debitor monstraverit se esse quietum inde versus eosdem pleggios.

12. Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, et primogenitum filium nostrum militem faciendum, et ad filiam nostram primogenitam semel maritandam, et ad haec non fiat nisi rationabile auxilium: simili modo fiat de auxiliis de civitate Londoniarum.

13. Et civitas Londoniarum habeat omnes antiquas libertates et liberas consuetudines suas, tam per terras, quam per aquas. Praeterea volumus et concedimus quod omnes aliae civitates, et burgi, et villae, et portus, habeant omnes libertates et liberas consuetudines suas.

14. Et ad habendum commune consilium regni, de auxilio assidendo aliter quam in tribus casibus praedictis, vel de

scutagio assidendo, summoneri faciemus archiepiscopos, episcopos, abbates, comites, et majores barones, sigillatim per litteras nostras; et praeterea faciemus summoneri in generali, per vicecomites et ballivos nostros, omnes illos qui de nobis tenent in capite; ad certum diem, scilicet ad terminum quadraginta dierum ad minus, et ad certum locum; et in omnibus litteris illius summonitionis causam summonitionis exprimemus; et sic facta summonitione negotium ad diem assignatum procedat secundum consilium illorum qui praesentes fuerint, quamvis non omnes summoniti venerint.

17. Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo.

20. Liber homo non amercietur pro parvo delicto, nisi secundum modum delicti; et pro magno delicto amercietur secundum magnitudinem delicti, salvo contenemen to suo; et mercator eodem modo salva mercandisa sua; et villanus eodem modo amercietur salvo wainnagio suo, si inciderint in misericordiam nostram; et nulla praedictarum misericordiarura ponatur, nisi per sacramentum proborum hominum de visneto.

28. Nullus constabularius, vel alius ballivus noster, capiat blada vel alia catalla alicujus, nisi statim inde reddat denarios, aut respectum inde habere possit de voluntate venditoris,

30. Nullus vicecomes, vel ballivus noster, vel aliquis alius, capiat equos vel caretas alicujus liberi hominis pro cariagio faciendo, nisi de voluntate ipsius liberi hominis.

31. Nec nos nec ballivi nostri capiemus alienum boscum ad castra, vel alia agenda nostra, nisi per voluntatem ipsius cujus boscus ille fuerit.

39. Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliquo modo des-

truatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terrae.

61.... Et nos nihil impetrabimus ab aliquo, per nos nec per alium, per quod aliqua istarum concessionum et libertatum revocetur vel minuatur; et, si aliquid tale impetratum fuerit, irritum sit et inane et numquam eo utemur per nos nec per alium.

63. Quare volumus et firmiter praecipimus quod Anglicana ecclesia libera sit et quod homines in regno nostro habeant et teneant omnes praefatas libertates, jura, et concessiones, bene et in pace, libere et quiete, plene et integre, sibi et haeredibus suis, de nobis et haeredibus nostris, in omnibus rebus et locis, in perpetuum, secut praedictum est. Juratum est autem tam ex parte nostra quam ex parte baronum, quod haec omnia supradicta bona fide et sine malo ingenio observabuntur. Testibus supradictis et multis aliis. Data per manum nostram in prato quod vocatur Runingmede, inter Windelesorum et Stanes, quinto decimo die Junii, anno regni nostri septimo decimo.

The petition exhibited to his Majesty by the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, concerning divers Rights and Liberties of the subjects, with the King's Majesty's royal answer thereunto in full Parliament. To the King's Most Excellent Majesty:

"Humbly show unto our Sovereign Lord the King, the Lords Spiritual and Temporal, and Commons in Parliament assembled, etc., etc."

After reciting the Statute De Tattagio non Concedendo, and several others in the reign of Edward III, � and that the people had been compelled to lend money to the King, � and reciting the Magna Carta, chapter 39, � and its violation in many cases, � and reciting that soldiers had been quartered on the people without their consent, and that martial law had been, by commissioners of his Majesty, enforced so as to adjudge to death subjects not in the army, � the Petition closes thus:

"X. They do therefore humbly pray your most excellent Majesty, that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of Parliament; and that none be called to make answer, or take such oath, or to give attendance, or be confined or otherwise molested or disquieted concerning the same or for refusal thereof; and that no free-man, in any such manner as is before mentioned, be imprisoned or detained; and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come; and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no

commissions of like nature may issue forth to any person or persons whatever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed or put to death contrary to the laws and franchise of the land.

"XI. All which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, that the awards, doings and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this kingdom.

"Qua quidem petitione lecta et plenius intellecta per dictum dominum regem taliter est responsum in pleno parliamento), viz. Soit droit fait come est desir�." (Statutes of the Realm, v. 24, 25.)

Whereas the Lords Spiritual and Temporal, and Commons, assembled at Westminster, lawfully, fully, and freely representing all the estates of the people of this realm, did, upon the thirteenth day of February, in the year of our Lord one thousand six hundred and eighty-eight, present unto their majesties, then called and known by the names and style of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain declaration in writing, made by the said Lords and Commons, in the words following, viz.:

Whereas the late King James II, by the assistance of diverse evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom:

1. By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament.

2. By committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring to the same assumed power.

3. By issuing and causing to be executed a commission under the Great Seal for erecting a court, called the Court of Commissioners for Ecclesiastical Causes.

4. By levying money for and to the use of the Crown, by pretence of prerogative, for other time, and in other manner than the same was granted by Parliament.

5. By raising and keeping a standing army within this kingdom in time of peace, without consent of Parliament, and quartering soldiers contrary to law.

6. By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law.

8. By prosecutions in the Court of King's Bench, for matters and causes cognizable only in Parliament; and by diverse other arbitrary and illegal courses.

9. And whereas of late years, partial, corrupt, and unqualified persons have been returned and served on juries in trials, and particularly diverse jurors in trials for high treason, which were not freeholders.

10. And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.

11. And excessive fines have been imposed; and illegal and cruel punishments inflicted.

12. And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons upon whom the same were to be levied.

All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm.

And whereas the said late King James II, having abdicated the government, and the throne being thereby vacant, his Highness, the Prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal, and diverse principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal, being Protestants, and other letters to the several counties, cities, universities, boroughs, and cinque ports, for the choosing of such persons as represent them, as were of right to be sent to Parliament, to meet and sit at Westminster upon the two-and-twentieth day of January, in this year one thousand six hundred eighty "and eight, in order to such an establishment, as that their religion, laws and liberties might not again be in danger of being subverted; upon which letters, elections have been accordingly made.

and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representation of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done), for the vindicating and asserting their ancient rights and liberties, declare: �

1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.

2. That the pretended power of dispensing with laws, or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.

3. That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious.

4. That levying money for or to the use of the Crown, by pretence of prerogative, without grant of parliament, for longer time or in other manner than the same is or shall be granted, is illegal.

5. That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.

6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.

7. That the subjects which are Protestants may have arms for their defense suitable to their conditions, and as allowed by law.

9. That the freedom of speech, and debates on proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.

10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.

11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.

12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.

13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliament ought to be held frequently.

And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties; and that no declarations, judgments, doings or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example.

To which demand of their rights they are particularly encouraged by the declaration of his Highness the Prince of Orange, as being the only means for obtaining a full redress and remedy therein.

Having therefore an entire confidence that his said Highness the Prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights, which they have here asserted, and from all other attempts upon their religion, rights, and liberties :

II. The said Lords Spiritual and Temporal, and Commons, assembled at Westminster, do resolve, that William and Mary, Prince and Princess of Orange, be, and be declared, King and Queen of England, France and Ireland, and the dominions thereunto belonging, to hold the Crown and royal dignity of the said kingdoms and dominions to them the said Prince and Princess during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said Prince of Orange, in the names of the said Prince and Princess, during their joint lives; and after their deceases, the said Crown and royal dignity of the said kingdoms and dominions to be to the heirs of the body of the said Princess; and for default of such issue to the Princess Anne of Denmark,

and the heirs of her body; and for default of such issue to the heirs of the body of the said Prince of Orange. And the Lords Spiritual and Temporal, and Commons, do pray the said Prince and Princess to accept the same accordingly.

IV. Upon which their said Majesties did accept the Crown and royal dignity of the kingdoms of England, France, and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration.

V. And thereupon their Majesties were pleased, that the said Lords Spiritual and Temporal, and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties' royal concurrence make effectual provision for the settlement of the religion, laws, and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted; to which the said Lords Spiritual and Temporal, and Commons, did agree and proceed to act accordingly.

VI. Now in pursuance of the premises, the said Lords Spiritual and Temporal, and Commons, in parliament assembled, for the ratifying, confirming, and establishing the said declaration, and the articles, clauses, matters, and things therein contained, by the force of a law made in due form by authority of parliament, do pray that it may be declared and enacted, That all and singular the rights and liberties asserted and claimed in the said declaration, are the true, ancient, and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed, and taken to be, and that all and every the particulars aforesaid shall be firmly and strictly holden and observed, as they are expressed in the said declaration; and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come.

VII. And the said Lords Spiritual and Temporal, and Commons, seriously considering how it hath pleased Almighty

God, in his marvellous providence, and merciful goodness to this nation, to provide and preserve their said Majesties' royal persons most happily to reign over us upon the throne of their ancestors, for which they render unto Him from the bottom of their hearts their humblest thanks and praises, do truly, firmly, assuredly, and in the sincerity of their hearts, think, and do hereby recognize, acknowledge, and declare, that King James II having abdicated the government, and their Majesties having accepted the Crown and royal dignity aforesaid, their said Majesties did become, were, are, and of right ought to be, by the laws of this realm, our sovereign liege Lord and Lady, King and Queen of England, France, and Ireland, and the dominions thereunto belonging, in and to whose princely persons the royal State, Crown, and dignity of the same realms, with all honours, styles, titles, regalities, prerogatives, powers, jurisdictions and authorities to the same belonging and appertaining, are most fully, rightfully, and entirely invested and incorporated, united, and annexed."

Chapter VIII declares the succession to William and Mary, and to the survivor of them for the life of such survivor, then to the heirs of the body of her Majesty, and in default thereof, to Princess Anne of Denmark.

Chapters IX and X exclude Papists from the throne, and require every person, who succeeds to the Crown, to take a coronation oath abjuring Papacy, and declaring in all and every such case or cases, "the people of these realms shall be and are hereby absolved of their allegiance;" and that the next in succession shall inherit the Crown, as if the Papist successor were naturally dead.

"XI. All which their Majesties are contented and pleased shall be declared, enacted, and established by authority of this present parliament, and shall stand, remain, and be the law of this realm forever; and the same are by their said Majesties, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in parliament assembled, and by the authority of the same, declared, enacted, or established accordingly."

"The Congress met according to adjournment, and resuming the consideration of the subject under debate � made the following declaration and resolves:

Whereas, since the close of the last war, the British parliament, claiming a power, of right, to bind the people of America by statutes in all cases whatsoever, hath, in some acts, expressly imposed taxes on them, and in others, under various pretences, but in fact for the purpose of raising a revenue, hath imposed rates and duties payable in these colonies, established a board of commissioners, with unconstitutional powers, and extended the jurisdiction of courts of admiralty, not only for collecting the said duties, but for the trial of causes merely arising within the body of a county.

And whereas, in consequence of other statutes, judges, who before held only estates at will in their offices, have been made dependant on the crown alone for their salaries, and standing armies kept in times of peace: And whereas, it has lately been resolved in parliament, that by force of a statute, made in the thirty-fifth year of the reign of king Henry the eighth, colonists may be transported to England, and tried there upon accusations for treason, and misprisions, or concealments of treasons committed in the colonies, and by a late statute, such trials have been directed in cases therein mentioned:

And whereas, in the last session of parliament, three statutes were made; one entitled, "An act to discontinue, in such manner and for such time as are therein mentioned, the landing and discharging, lading, or shipping of goods, wares, and merchandize, at the town, and within the harbour of Boston, in the province of Massachusetts-Bay in North-America;" another entitled, "An act for the better regulating the government of the province of Massachusetts-Bay in New England;" and another entitled, "An act for the impartial

administration of justice, in the cases of persons questioned for any act done by them in the execution of the law, or for the suppression of riots and tumults, in the province of the Massachusetts-Bay in New England;" and another statute was then made, "for making more effectual provision for the government of the province of Quebec, &c." All which statutes are impolitic, unjust and cruel, as well as unconstitutional, and most dangerous and destructive of American rights:

And whereas, assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances; and their dutiful, humble, loyal, and reasonable petitions to the crown for redress, have been repeatedly treated with contempt, by his majesty's ministers of state:

The good people of the several colonies of New Hampshire, Massachusetts-Bay, Rhode Island, and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceedings of parliament and administration, have severally elected, constituted, and appointed deputies to meet, and sit in general Congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties, may not be subverted: Whereupon the deputies so appointed being now assembled, in a full and free representation of these colonies, taking into their most serious consideration, the best means of attaining the ends aforesaid, do, in the first place, as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, DECLARE,

That the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS :

Resolved, N. C. D. 1. That they are entitled to life, liberty and property: and they have never ceded to any sovereign

Resolved, N. C. D. 2. That our ancestors who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.

Resolved, N. C. D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.

Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed: But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation internal or external, for raising a revenue on the subjects, in America, without their consent.

Resolved, N. C. D. 5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.

of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.

Resolved, N. C. D. 7. That these, his majesty's colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.

Resolved, N. C. D. 8. That they have a right peaceably to assemble, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.

Resolved, N. C. D. 9. That the keeping a standing army in these colonies, in times of peace, without the consent of the legislature of that colony, in which such army is kept, is against law.

Resolved, N. C. D. 10. It is indispensably necessary to good government, and rendered essential by the English constitution, that the constituent branches of the legislature be independent of each other; that, therefore, the exercise of legislative power in several colonies, by a council appointed, during pleasure, by the crown, is unconstitutional, dangerous and destructive to the freedom of American legislation.

All and each of which the aforesaid deputies, in behalf of themselves, and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged by any power whatever, without their own consent, by their representatives in their several provincial legislatures.

In the course of our inquiry, we find many infringements and violations of the foregoing rights, which, from an ardent desire, that harmony and mutual intercourse of affection and interest may be restored, we pass over for the present, and proceed to state such acts and measures as have been adopted since the last war, which demonstrate a system formed to enslave America.

Resolved, N. C. D. That the following acts of parliament are infringements and violations of the rights of the colonies; and that the repeal of them is essentially necessary, in order to restore harmony between Great Britain and the American colonies, viz.:

The several acts of 4 Geo. III., ch. 15 and ch. 34; 5 Geo. III, ch. 25; 6 Geo. III, ch. 52; 7 Geo. III., ch. 41 and ch. 46; 8 Geo. III., ch. 22, which impose duties for the purpose of raising a revenue in America, extend the power of the admiralty courts beyond their ancient limits, deprive the American subject of trial by jury, authorize the judge's certificate to indemnify the prosecutor from damages, that he might otherwise be liable to, requiring oppressive security from a claimant of ships and goods seized, before he shall be allowed to defend his property, and are subversive of American rights.

Also 12 Geo. III., ch. 24, intitulated, "An act for the better securing his majesty's dock-yards, magazines, ships, ammunition, and stores," which declares a new offence in America, and deprives the American subject of a constitutional trial by jury of the vicinage, by authorizing the trial of any person, charged with the committing any offence described in the said act, out of the realm, to be indicted and tried for the same in any shire or county within the realm.

Also the three acts passed in the last session of parliament, for stopping the port and blocking up the harbour of Boston, for altering the charter and government of Massachusetts-Bay, and that which is entitled, "An act for the better administration of justice, &c."

Also the act passed in the same session for establishing the Roman Catholic religion, in the province of Quebec, abolishing the equitable system of English laws, and erecting a tyranny there, to the great danger (from so total a dissimilarity of religion, law and government) of the neighboring British colonies, by the assistance of whose blood and treasure the said country was conquered from France.

viding suitable quarters for officers and soldiers in his majesty's service, in North America.

Also, that the keeping a standing army in several of these colonies, in time of peace, without the consent of the legislature of that colony, in which such army is kept, is against law.

To these grievous acts and measures, Americans cannot submit, but in hopes their fellow subjects in Great Britain will, on a revision of them, restore us to that state, in which both countries found happiness and prosperity, we have for the present, only resolved to pursue the following peaceable measures: 1. To enter into a non-importation, non-consumption, and non-exportation agreement or association. 2. To prepare an address to the people of Great Britain, and a memorial to the inhabitants of British America: and 3. To prepare a loyal address to his majesty, agreeable to resolutions already entered into.

"Resolved, That the general assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the constitution of the United States, and the constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.

"The general assembly most solemnly declares a warm attachment to the union of the states, to maintain which it pledges all its powers; and that for this end it is their duty to watch over and oppose every infraction of those principles, which constitute the only basis of that union, because a faithful observance of them can alone secure its existence, and the public happiness.

"That this assembly doth explicitly and peremptorily declare that it views the powers of the federal government as resulting from the compact, to which the states are par-

ties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states, who are parties thereto, have the right and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

"That the general assembly doth also express its deep regret that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of powers in the former articles of confederation, were the less liable to be misconstrued,) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states by degrees into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.

"That the general assembly doth particularly protest against the palpable and alarming infractions of the constitution, in the two late cases of the "alien and sedition acts," passed at the last session of congress; the first of which exercises a power no where delegated to the federal government; and which, by uniting legislative and judicial powers to those of executive, subverts the general principles of free government, as well as the particular organization and positive provisions of the federal constitution; and the other of which acts exercises, in like manner, a power not delegated by the constitution; but, on the contrary, expressly and positively forbidden by one of the amendments thereto: a power, which, more than any other, ought to produce universal

alarm; because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.

"That this state having by its convention which ratified the federal constitution, expressly declared, 'that among other essential rights, "the liberty of conscience and of the press cannot be canceled, abridged, restrained or modified by any authority of the United States,"' and from its extreme anxiety to guard these rights from every possible attack of sophistry and ambition, having with other states recommended an amendment for that purpose, which amendment was in due time annexed to the constitution, it would mark a reproachful inconsistency and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which may be fatal to the other.

"That the good people of this commonwealth, having ever felt and continuing to feel the most sincere affection to their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the general assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional; and, that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining unimpaired, the authorities, rights, and liberties reserved to the states respectively, or to the people."

"I. Resolved, That the several states composing the United States of America, are not united on the principle of

unlimited submission to their general government; but that by compact under the style and title of a constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each state acceded as a state, and is an integral party, its co-states forming as to itself, the other party: That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers; but that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress."

The House of Representatives of Delaware passed the following resolution February 1, 1799:

"Resolved, By the senate and house of representatives of the state of Delaware, in general assembly met, that they consider the resolutions from the state of Virginia, as a very unjustifiable interference with the general government and constituted authorities of the United States, and of dangerous tendency, and therefore not a fit subject for the further consideration of the general assembly."

The State of Rhode Island and Providence Plantations, in General Assembly, February, 1799, passed the following resolutions:

"1. Resolved, That in the opinion of this legislature, the second section of the third article of the constitution of the United States, in these words, to-wit: The judicial power shall extend to all cases arising under the laws of the United States, vests in the federal courts exclusively, and in the su-

preme court of the United States, ultimately, the authority of deciding on the constitutionality of any act or law of the congress of the United States.

"2. Resolved, That for any state legislature to assume that authority, would be,

2d. Hazarding an interruption of the peace of the states by civil discord, in case of a diversity of opinions among the state legislatures; each state having, in that case, no resort for vindicating its own opinion, but to the strength of its own arm.

3rd. Submitting most important questions of law, to less competent tribunals: and

4th. An infraction of the constitution of the United States, expressed in plain terms."

"The legislature of Massachusetts having taken into serious consideration the resolutions of the state of Virginia, passed the 21st day of December last, and communicated by his excellency the governor, relative to certain supposed infractions of the constitution of the United States, by the government thereof, and being convinced that the federal constitution is calculated to promote the happiness, prosperity and safety of the people of these United States, and to maintain that union of the several states, so essential to the welfare of the whole; and, being bound by solemn oath to support and defend that constitution, feel it unnecessary to make any professions of their attachment to it, or of their firm determination to support it against every aggression, foreign or domestic.

"But they deem it their duty solemnly to declare, that while they hold sacred the principle, that the consent of the people is the only pure source of just and legitimate power, they cannot admit the right of the state legislatures to denounce the administration of that government to which the

people themselves, by a solemn compact, have exclusively committed their national concerns: That, although a liberal and enlightened vigilance among the people is always to be cherished, yet an unreasonable jealousy of the men of their choice, and a recurrence to measures of extremity, upon groundless or trivial pretexts, have a strong tendency to destroy all rational liberty at home, and to deprive the United States of the most essential advantages in their relations abroad: That this legislature are persuaded, that the decisions of all cases in law and equity, arising under the constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States.

"That the people in that solemn compact, which is declared to be the supreme law of the land, have not constituted the state legislatures the judges of the acts or measures of the federal government, but have confided to them the power of proposing such amendments of the constitution, as shall appear to them necessary to the interests, or conformable to the wishes of the people whom they represent.

"That by this construction of the constitution, an amicable and dispassionate remedy is pointed out for any evil which experience may prove to exist, and the peace and prosperity of the United States may be preserved without interruption.

"But, should the respectable state of Virginia persist in the assumption of the right to declare the acts of the national government unconstitutional, and should she oppose successfully her force and will to those of the nation, the constitution would be reduced to a mere cypher, to the form and pageantry of authority, without the energy of power. Every act of the federal government which thwarted the views or checked the ambitious projects of a particular state, or of its leading and influential members, would be the object of opposition and of remonstrance; while the people, convulsed and confused by the conflict between two hostile

jurisdictions, enjoying the protection of neither, would be wearied into a submission to some bold leader, who would establish himself on the ruins of both."

"And whereas the senate not perceiving that the rights of the particular states have been violated, nor any unconstitutional powers assumed by the general government, cannot forbear to express the anxiety and regret with which they observe the inflammatory and pernicious sentiments and doctrines which are contained in the resolutions of the legislatures of Virginia and Kentucky; sentiments and doctrines no less repugnant to the constitution of the United States, and the principles of their union, than destructive to the federal government, and unjust to those whom the people have elected to administer it; wherefore,

"Resolved, That while the senate feel themselves constrained to bear unequivocal testimony against such sentiments and doctrines, they deem it a duty no less indispensable, explicitly to declare their incompetency, as a branch of the legislature of this state, to supervise the acts of the general government."

The legislature of Connecticut passed the following resolution on the "second Tuesday of May, anno domini, 1799:"

Resolved, That this assembly views with deep regret, and explicitly disavows, the principles contained in the aforesaid resolutions; and particularly the opposition to the "alien and sedition acts," acts, which the constitution authorized; which the exigency of the country rendered necessary; which the constituted authorities have enacted, and which merit the entire approbation of this assembly. They therefore decidedly refuse to concur with the legislature of Virginia, in promoting any of the objects attempted in the aforesaid resolutions."

"Resolved, That the legislature of New Hampshire unequivocally express a firm resolution to maintain and defend the constitution of the United States, and the constitution of this State, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.

"That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government � that the duty of such decision is properly and exclusively confided to the judicial department."

"Resolved, That the general assembly of the state of Vermont do highly disapprove of the resolutions of the general assembly of Virginia, as being unconstitutional in their nature, and dangerous in their tendency. It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the union: That his excellency the governor be requested to transmit a copy of this resolution to the executive of Virginia, to be communicated to the general assembly of that state: And that the same be sent to the governor and council for their concurrence."

WE, the people of the United States, in order to form a more perfect 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, to ordain and establish this Constitution for the United States of America.

SECTION 1. � 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

SECTION 2. � 1. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

2. No person shall be a Representative 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.

3. Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall

be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress 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 entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

4. When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies.

5. The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment.

SECTION 3. � 1. 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.

2. Immediately after they shall be assembled in consequence 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 expiration of the second year; of the second class, at the expiration of the fourth year; and of the third class, at the expiration of the sixth year; so that one-third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.

3. No person shall be a Senator who shall not have attained 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.

4. The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

5. The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States.

6. The Senate shall have the sole power to try all impeachments. 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.

7. 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.

SECTION 4. � 1. The times, places, and manner, of holding elections 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.

2. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.

SECTION 5. � 1. Each House shall be the judge of the elections, returns, 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 penalties, as each House may provide.

2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.

3. Each House shall keep a journal of its proceedings, and, from time to time, publish the same, excepting such 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.

4. 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.

SECTION 6. � 1. The Senators and Representatives shall receive 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 any speech or debate in either House, they shall not be questioned in any other place.

2. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person, holding any office under the United States, shall be a member of either House during his continuance in office.

SECTION 7. � 1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.

Representatives 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 origi-

nated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, 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 return, in which, case it shall not be a law.

3. Every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be presented to the President of the United States; and 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 Representatives, according to the rules and limitations prescribed in the case of a bill. SECTION 8. � The Congress shall have power 1. 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:

3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes:

4. To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States:

5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures:

6. To provide for the punishment of counterfeiting the securities and current coin of the United States:

8. To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries:

10. To define and punish piracies and felonies, committed on the high seas, and offences against the law of nations:

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:

12. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years:

14. To make rules for the government and regulation of the land and naval forces:

15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions :

16. 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 officers, and the authority of training the militia, according to the discipline prescribed by Congress:

17. To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance 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 needful buildings: � And

18. 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 Government of the United States, or in any department or officer thereof.

SECTION 9. � 1. The migration or importation of such persons, as any of the states, now existing, shall think proper to admit, shall not be prohibited by the Congress prior 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.

2. The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.

4. No capitation, or other direct tax, shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.

5. No tax or duty shall be laid on articles exported from any state. No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties, in another.

6. 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 expenditures of all public money shall be published from time to time.

7. 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 Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

SECTION 10. � 1. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

2. 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 inspection laws; and the net produce of all duties and imposts, 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 revision and control of the Congress. 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 another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

SECTION 1. � 1. The Executive power shall be vested in a President of the United States of America. 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:

2. Each state shall appoint, in such manner as the legislature thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives, to which the state may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit, under the United States, shall be appointed an Elector.

3. The Electors shall meet in their respective states, and vote by ballot for two persons, of whom one, at least, shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and 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 shall be the President, if such number be a majority of the whole number of Electors appointed; and if there be more than one, who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose, by ballot, one

of them for President; and if no person have a majority, then, from the five highest on the list, the said House shall, in like manner, choose 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 necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the Electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them, by ballot, the Vice-President.

4. The Congress may determine the time of choosing the Electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

5. 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.

6. 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, 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.

7. The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive, within that period, any other emolument from the United States, or any of them.

8. Before he enter on the execution of his office, he shall take the following oath or affirmation:

9. "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 Constitution of the United States."

SECTION 2. � 1. The President shall be Commander-in-Chief of the army and navy 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 opinion, in writing, of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

2. 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 nominate, and, by and with the advice and consent of the 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.

3. 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.

SECTION 3. � 1. He shall, from time to time, give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; 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 adjournment, 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

SECTION 4. � 1. The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

SECTION 1. � 1. The judicial power of the United States shall be vested in 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 behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

SECTION 2. � 1. 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 affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between 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.

2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a 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.

shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state the trial shall be at such place or places as the Congress may by law have directed.

SECTION 3. � 1. 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.

2. 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 attainted.

SECTION 1. � 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

SECTION 2. � 1. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

2. 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.

3. No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

SECTION 3. � 1. New states may be admitted by the Congress 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 Congress.

2. The Congress shall have power to dispose of and make all needful rules and regulations 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.

SECTION 4. � 1. 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.

1. The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures 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 one or the other mode of ratification may be proposed by the Congress: provided that no amendment which may be made prior to the year one thousand eight hundred and eight, shall, in any manner, affect the first and fourth clauses in the ninth section of the first Article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

1. All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution as under the Confederation.

2. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all 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.

3. The Senators and Representatives 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 religious test shall ever be required as a qualification to any office or public trust under the United States.

1. The ratification of the conventions of nine states shall be sufficient for the establishment of this Constitution between the states so ratifying the same.

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 eighty-seven, and of the Independence of the United States of America the twelfth. In witness whereof we have hereunto subscribed our names.

BENJAMIN FRANKLIN, THOMAS MIFFLIN, ROBERT MORRIS, GEORGE CLYMER, THOMAS FITZSIMONS,

GEORGE READ, GUNNING BEDFORD, JR., JOHN DICKINSON, RICHARD BASSETT, JACOB BROOM.

Congress shall make no law respecting an establishment 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.

A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

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.

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.

No person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war, or public danger; nor shall any person be subject, for the same offence, 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 deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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 witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.

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.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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

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

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

1. The Electors shall meet in their respective states, and vote 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 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 number be a majority of the whole number of Electors appointed; and if no person have such a 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 immediatety, 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 necessary 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 President, as in case of the death, or other constitutional disability, of the President.

2. The person having the greatest 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 number of Senators; a majority of the whole number shall be necessary to a choice.

3. But no person constitutionally ineligible to the office of President, shall be eligible to that of Vice-President of the United States.

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.

SECTION 2. � Congress shall have power to enforce this article by appropriate legislation.

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 citizens 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 jurisdiction the equal protection of the laws.

SECTION 2. � Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhab-

itants 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.

SECTION 3. � No person shall be a Senator or Representative 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 disability.

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 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 the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void.

SECTION 5. � The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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 previous condition of servitude.

SECTION 2. � The Congress shall have power to enforce this article by appropriate legislation.

A DECLARATION BY THE REPRESENTATIVES OP THE UNITED STATES OF AMERICA, IN CONGRESS ASSEMBLED.

WHEN, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established, should not be changed for light and transient causes; and, accordingly, all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But, when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design

to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of these colonies, and such is now the necessity which constrains them to alter their former systems of government. The history of the present king of Great Britain is a history of repeated injuries and usurpations, all having, in direct object, the establishment of an absolute tyranny over these States. To prove this, let facts be submitted to a candid world:

He has refused his assent to laws the most wholesome and necessary for the public good.

He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them.

He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature; a right inestimable to them, and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved representative houses repeatedly, for op posing, with manly firmness, his invasions on the rights of the people.

He has refused, for a long time after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the State remaining, in the mean time, exposed to all the dangers of invasion from without, and convulsions within.

He has endeavored to prevent the population of these States; for that purpose, obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, standing armies, without the consent of our legislature.

He has affected to render the military independent of, and superior to, the civil power.

He has combined, with others, to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation :

For protecting them, by a mock trial, from punishment, for any murders which they should commit on the inhabitants of these States:

For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries, so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies:

For taking away our charters, abolishing our most valuable laws, and altering, fundamentally, the powers of our governments:

For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated government here, by declaring us out of his protection, and waging war against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is, at this time, transporting large armies of foreign mercenaries to complete the works of death, desolation, and tyranny, already begun, with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.

He has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare is an undistinguished destruction, of all ages, sexes, and conditions.

In every stage of these oppressions, we have petitioned for redress, in the most humble terms; our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

We have warned them, from time to time, of attempts made by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them, by the ties of our common kindred, to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They, too, have been deaf to the voice of justice and consanguinity. We must, therefore, acquiesce in the necessity which denounces our separation, and hold them as we hold the rest of mankind, enemies in war, in peace, friends.

We, therefore, the representatives of the UNITED STATES OF AMERICA, in GENERAL CONGRESS assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, That these United Colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British crown, and that all political connection between them and the state of Great Britain, is, and ought to be, totally dissolved; and that, as FREE AND INDEPENDENT STATES, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which INDEPENDENT STATES may of right do. And, for the support of this declaration, with a firm reliance on the protection of DIVINE PROVIDENCE, we mutually pledge to each other, our lives, our fortunes, and our sacred honor. JOHN HANCOCK.

Massachusetts Bay. SAMUEL ADAMS, JOHN ADAMS, ROBERT TREAT PAINE, ELBRIDGE GERRY.

RICHARD STOCKTON, JOHN WITHERSPOON, FRANCIS HOPKINSON, JOHN HART, ABRAHAM CLARK.

ROBERT MORRIS, BENJAMIN RUSH, BENJAMIN FRANKLIN, JOHN MORTON, GEORGE CLYMER, JAMES SMITH, GEORGE TAYLOR, JAMES WILSON, GEORGE Ross.

And perpetual union between the states of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.

ARTICLE I. The style of this Confederacy shall be, "THE UNITED STATES OF AMERICA."

ARTICLE II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled.

ARTICLE III. The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.

ARTICLE IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this Union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice ex-

cepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state; and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively; provided, that such restriction shall not extend so far as to prevent the removal of property imported into any state to any other state, of which the owner is an inhabitant; provided also, that no imposition, duties, or restriction shall be laid by any state on the property of the United States, or either of them.

If any person guilty of, or charged with treason, felony, or other high misdemeanor, in any state, shall flee from justice, and be found in any of the United States, he shall, upon demand of the governor or executive power of the state from which he fled, be delivered up and removed to the state having jurisdiction of his offence.

Full faith and credit shall be given in each of these states to the records, acts, and judicial proceedings of the courts and magistrates of every other state.

ARTICLE V. For the more convenient management of the general interests of the United States, delegates shall be annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on the first Monday in November, in every year, with a power reserved to each state to recall its delegates, or any of them, at any time within the year, and send others in their stead for the remainder of the year.

No state shall be represented in Congress by less than two, nor by more than seven members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any office under the United States, for which he, or another for his benefit, receives any salary, fees, or emolument of any kind.

Each state shall maintain its own delegates in a meeting of the states, and while they act as members of the committee of the states.

In determining questions in the United States in Congress assembled, each state shall have one vote.

Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress; and the members of Congress shall be protected in their persons from arrests and imprisonment during the time of their going to, and from, and attending on Congress, except for treason, felony, or breach of the peace.

ARTICLE VI. No state, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with any king, prince, or state; nor shall any person, holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

No two or more states shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

No state shall lay any imposts or duties, which may interfere with any stipulations in treaties entered into by the United States in Congress assembled with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the Courts of France and Spain.

No vessels of war shall be kept up, in time of peace, by any state, except such number only as shall be deemed necessary, by the United States in Congress assembled, for the defence of such state or its trade; nor shall any body of forces be kept up by any state, in time of peace, except such number only as, in the judgment of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well-regulated and disciplined

militia, sufficiently armed and accoutred; and shall provide and constantly have ready for use, in public stores, a due number of field-pieces and tents, and a proper quantity of arms, ammunition, and camp equipage.

No state shall engage in any war, without the consent of the United States in Congress assembled, unless such state be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such state, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any state grant commissions to any ship or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled; and then only against the kingdom or state, and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such state be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.

ARTICLE VII. When land forces are raised by any state for the common defence, all officers of or under the rank of colonel shall be appointed by the legislature of each state respectively, by whom such forces shall be raised, or in such manner as such state shall direct; and all vacancies shall be filled up by the state which first made the appointment.

ARTICLE VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury which shall be supplied by the several states in proportion to the value of all land within each state, granted to or surveyed for any person as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled shall, from time to time, direct and appoint. The taxes for paying that pro-

portion shall be laid and levied by the authority and direction of the legislatures of the several states, within the time agreed upon by the United States in Congress assembled.

ARTICLE IX. The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth Article: Of sending and receiving ambassadors: Entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatever: Of establishing rules for deciding, in all cases, what captures on land or water shall be legal; and in what manner prizes, taken by land or naval forces in the service of the United States, shall be divided or appropriated: Of granting letters of marque and reprisal in times of peace: Appointing courts for the trial of piracies and felonies committed on the high seas; and establishing courts for receiving and determining, finally, appeals in all cases of captures; provided that no member of Congress shall be appointed a judge of any of the said courts.

The United States, in Congress assembled, shall also be the last resort, on appeal, in all disputes and differences now subsisting, or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following: Whenever the legislative or executive authority, or lawful agent of any state, in controversy with another, shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given, by order of Congress, to the legislative or executive authority of the other state in controversy; and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court

for hearing and determining the matter in question: but if they cannot agree, Congress shall name three persons out of each of the United States; and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges to hear and finally determine the controversy, so always as a major part of the judges, who shall hear the cause, shall agree in the determination. And if either party shall neglect to attend at the day appointed, without showing reasons which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each state, and the Secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and conclusive. And if any of the parties shall refuse to submit to the authority of such court, or to appear, or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive; the judgment or sentence and other proceedings being, in either case, transmitted to Congress and lodged among the Acts of Congress for the security of the parties concerned: Provided that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the supreme or superior court of the state where the cause shall be tried, Well and truly to hear and determine the matter in question, according to the best of his judgment, without favor, affection, or hope of reward:" Provided also, that no state shall be deprived of territory for the benefit of the United States.

All controversies concerning the private right of soil claimed under different grants of two or more states, whose

jurisdictions, as they may respect such lands and the states which passed such grants, are adjusted, the said grants, or either of them, being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different states.

The United States, in Congress assembled, shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective states: Fixing the standard of weights and measures throughout the United States: Regulating the trade and managing all affairs with the Indians, not members of any of the states; provided that the legislative right of any state within its own limits be not infringed or violated: Establishing and regulating post-offices, from one state to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office: Appointing all officers of the land forces in the service of the United States, excepting regimental officers: Appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States: Making rules for the government and regulation of the land and naval forces, and directing their operations.

The United States, in Congress assembled, shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated A COMMITTEE OF THE STATES, and to consist of one delegate from each state, and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction: To appoint one of their number to preside; provided that no person be allowed to serve in the office of president more than one year in any term of three years: To ascertain the necessary sums of money to

be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses: To borrow money or emit bills on the credit of the United States, transmitting every half year to the respective states an account of the sums of money so borrowed or emitted: To build and equip a navy: To agree upon the number of land forces, and to make requisitions from each state for its quota, in proportion to the number of white inhabitants in such state, which requisition shall be binding; and thereupon the legislature of each state shall appoint the regimental officers, raise the men, and clothe, arm, and equip them, in a soldierlike manner, at the expense of the United States; and the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled: but if the United States, in Congress assembled, shall, on consideration of circumstances, judge proper that any state should not raise men, or should raise a smaller number than its quota, and that any other state should raise a greater number of men than its quota thereof, such extra number shall be raised, officered, clothed, armed, and equipped in the same manner as the quota of such state; unless the legislature of such state shall judge that such extra number cannot be safely spared out of the same; in which case they shall raise, officer, clothe, arm, and equip as many of such extra number as they judge can be safely spared: and the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled.

The United States, in Congress assembled, shall never engage in a war; nor grant letters of marque and reprisal in time of peace; nor enter into any treaties or alliances; nor coin money; nor regulate the value thereof; nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them; nor emit bills; nor borrow money on the credit of the United States; nor appropriate money; nor agree upon the number of vessels of war

to be built or purchased, or the number of land or sea forces to be raised; nor appoint a Commander-in-chief of the army or navy; unless nine states assent to the same; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States in Congress assembled.

The Congress of the United States shall have power to adjourn to any time within the year, and to any place within the United States, so that no period of adjournment be for a longer duration than the space of six months; and shall publish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances, or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to lay before the legislatures of the several states.

ARTICLE X. The committee of the states, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of nine states, shall from time to time think expedient to vest them with; provided that no power be delegated to the said committee, for the exercise of which, by the Articles of Confederation, the voice of nine states in the Congress of the United States assembled is requisite.

ARTICLE XI. Canada, acceding to this Confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine states.

ARTICLE XII. All bills of credit emitted, moneys borrowed, and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present Confederation, shall be deemed

and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith, are hereby solemnly pledged.

ARTICLE XIII. Every state shall abide by the determinations of the United States in Congress assembled, on all questions which by this Confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every state; and the Union shall be perpetual. Nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every state.

And whereas, it hath pleased the Great Governor of the world to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union: Know ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them; and that the articles thereof shall be inviolably observed by the states we respectively represent; and that the Union shall be perpetual. In witness whereof we have hereunto set our hands in Congress. Done at Philadelphia, in the state of Pennsylvania, the 9th day of July, in the year of our Lord 1778, and in the 3d year of the Independence of America.

IN CONVENTION, MONDAY, SEPTEMBER 17, 1787. Present: The States of New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the opinion of this convention that it should afterwards be submitted to a Convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and that each convention, assenting to and ratifying the same, should give notice thereof, to the United States in Congress assembled.

Resolved, That it is the opinion of this Convention, that as soon as the conventions of nine states shall have ratified this Constitution, the United States in Congress assembled should fix a day on which electors should be appointed by the states which shall have ratified the same, and a day on which the electors should assemble to vote for the President, and the time and place for commencing proceedings under this Constitution. That after such publication the electors should be appointed, and the Senators and Representatives elected; that the electors should meet on the day fixed for the election of the President, and should transmit their votes certified, signed, sealed, and directed as the Constitution requires, to the Secretary of the United States in Congress assembled; that the Senators and Representatives should convene at the time and place assigned; that the Senators should appoint a president of the Senate, for the sole purpose of receiving, opening, and counting the votes for President; and that, after he shall be chosen, the Congress, together

with the President, should, without delay, proceed to execute this Constitution.

SIR : We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which has appeared to us the most advisable.

The friends of our country have long seen and desired that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the General Government of the Union; but the impropriety of delegating such extensive trust to one body of men is evident: hence results the necessity of a different organization.

It is obviously impracticable, in the Federal Government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must he surrendered and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several states as to their situation, extent, habits, and particular interests.

In all our deliberations on this subject, we kept steadily in our view that which appears to us the greatest interest of every true American � the consolidation of our Union �

in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each state in the Convention to be less rigid on points of inferior magni-

tude than might have been otherwise expected; and thus the Constitution which we now present is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.

That it will meet the full and entire approbation of every state, is not, perhaps, to be expected; but each will doubtless consider that, had her interest been alone consulted, the consequences might have been particularly disagreeable or injurious to others; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish.

With great respect, we have the honor to be, sir, your excellency's most obedient, humble servants.

laws involving Federal questions, 765-767. ADMIRALTY AND MARITIME JURISDICTION �

crimes, how far punishable under, 779-781. AFFREIGHTMENT, 778. ALASKA TREATY �

right of, to hold land in a State under terms of treaty of the United States maintained, 732.

right of, to sue in Federal courts, 796, 797. AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS �

on power of House of Representatives to punish recalcitrant witness, 435, 436. ANGLES �

why and how originate in either House under American Constitution, 448-451. APPROPRIATIONS �

power of Congress to raise and support, means what, 578. appropriations for support of, to last no longer than two years, 579.

power over, how related to prohibition on States to impair obligation of contracts, 559, 560.

BI-CAMERAL PRINCIPLE � in the United States, 99, 100. adopted by Federal convention, 326-328. applied to Congress, 393.

BILL OF RIGHTS OF VIRGINIA � theory of human equality in, 4, 6. on relation of individual to government, 48. locates sovereignty in people, 61.

decision in, as affecting jurisdiction of States over citizenship, 345. BRIBERY �

differs how from American in treatment of revenue bills, 448. BROWN v. STATE OF MARYLAND �

why members cannot be admitted to floor of Congress, 444, 445. CABINET SYSTEM �

included in admiralty and maritime jurisdiction, 776. CAPITATION TAX (see TAX). CAPTURES, RULES CONCERNING �

opinion of in Ware v. Hylton on Declaration of Independence, 234. in Texas v. White on nature of the Union, 316.

power of Congress over commerce applies to migration of, 552. CHISHOLM v. GEORGIA �

controversies between, of one State and a State fall under jurisdiction of United States, 761.

on veto of certain portions of appropriation bills, 752, CO-EFFICIENT POWER OF CONGRESS �

opinion of Justice Gray in, on exercise of taxing power by the legislature, 79. COLONIAL SYSTEM �

position of, in American Revolution, 97. reply of, to England regarding representation, 98. unfortunate position with reference to Great Britain, 98. doctrine of independent sovereignty of each established, 194-196. original political status of, 197-200. land tenure in, as evidence of original status, 200, 201. citizenship in, 201. sovereignty in original, 202. political independence of, 203. relation to Continental Congress, 209-228. status as separate Bodies-politic, 213, 226. 60

sovereign character of, established by action as to Declaration of Independence, 236.

power over light-houses, etc., included in, 557. COMMERCE, POWER TO REGULATE �

acts affecting private rights of persons in, valid, 594. CONFEDERATION OF CERTAIN COLONIES IN NEW ENGLAND �

accepts territory from Virginia (bearing on doctrine of reserved rights of States), 240, 241.

taxing power corresponds to what revenue power under Articles of Confederation, 456.

power over commerce applies to District of Columbia and to Territories and includes power over internal commerce in such regions, 553.

question whether contract involved in negotiable paper can be regulated by, 557.

may not impair obligation of contracts except by a uniform rule of bankruptcy, 561.

contract of, with Central Pacific, valid irrespective of constitutionality, 571-572.

nature of power of, over territory as deduced from history of original "Northwest Territory," 605.

consent of, necessary before officers of United States can accept titles of nobility, etc., 664.

incidental powers necessary to make powers of Executive effective are vested in, 694.

discussion on powers of, in connection with treaties, at time of Treaty of Ghent, 828.

has power to decide what officers to be appointed by President and what to be merely nominated by him, 733, 734.

has no power under fourteenth amendment to afford affirmative protection within States, 856.

cannot invade domain of State legislation under fourteenth amendment, 858, 859. CONGRESS, CONTINENTAL �

lack of sovereignty in, shown by action in referring Declaration of Independence, 236.

nature of evidenced by its utterances, S14, 215. CONGRESS, SECOND CONTINENTAL �

constitutionality of, as passed by Confederate Congress, decided by Court of Appeals of Virginia, 579, 580. CONSTITUTION �

reservation of certain powers to States desired by Federal convention, 281, 282.

evidence drawn from language of on sundry subjects, as to who ordained Constitution, 301-304.

how affected and interpreted by tenth amendment, 304-307. by eleventh amendment, 307.

on power of Congress "to pay the debts and provide for the common defense and general welfare," 470-482.

on privileges and immunities of citizens in relation to the commerce power, 530.

on method of levying direct and capitation taxes, 659. forbids levy of duties on articles exported by any State, 659. forbids preference to ports of one State over those of another, 660. on withdrawal of money from treasury, 662. on non-grant of titles of nobility, 664. first amendment to, 667. second amendment to, 671. third amendment to, 672. fourth amendment to, 672. fifth amendment to, 673. sixth amendment to, 678, 679. seventh amendment to, 682. eighth amendment to, 686. ninth amendment to, 687. tenth amendment to, 689. discussion of provisions on nature of Constitution and election of

twelfth amendment to, 701, 702, 706, 707. on qualifications, etc., of executive, 707-714. on oath of President, 715. on investiture of executive power, 716.

on division of war power between legislative departments, 716-718. on power of President to ask for opinions of executive officers in

on power of President to grant pardons and reprieves, 719. on making of treaties, 720. on appointing power of the President, 732. on power of President to fill vacancies, 740. not clear regarding appointive power, 742. on President's duty to give information and recommend measures

on President's duty to adjourn Congress, 744. on duty of President to take care of execution of the laws, 748. on impeachment as a means of removing faithless officers, 748, 749, on organization of judicial department, 753. on jurisdiction of Supreme Court, 757, 767-7C9. on judicial power of the United States, 757, 758. cases arising under, fall within jurisdiction of United States why,

on cases affecting ambassadors, etc., 770-772. on admiralty and maritime jurisdiction, 772. on jurisdiction of Federal courts, 784-786. eleventh amendment to, 786-792.

or enter into compact with another State, etc., 845, 846. thirteenth amendment to, quoted and discussed, 848-850. fourteenth amendment to, discussed, 850-874,

CONSTITUTION OF VIRGINIA � origin and history of, 70. adopted, 225. nature of, 225. first State, 255, 256.

regulation of, proper function of legislative department, 75. integrity of, injuriously affected by exercise of legal-tender power,

laws impairing, may not be passed by States, 827. kinds of, 828. "obligation" of, means what, 836-840.

CONVENTION, CONSTITUTIONAL � functions of, 68, 69. character as representative body, 72.

CONVENTION, FEDERAL, OF 1787 � acts of, how ratified, 69. see PHILADELPHIA CONVENTION.

are subordinate to State laws forbidding use or sale of articles referred to, 573. CORFIELD v. CORYELL �

CORPORATIONS � nature of, 829, 830. charters of, are contracts with State, and may not be invalidated

unless such power is reserved, 830, 831. charters of eleemosynary, are irrepealable, 832. nature of municipal, 832, 833.

fall within scope of fourteenth amendment, 863, 864. may be specially taxed despite fourteenth amendment, 864, 865.

no one to be held to answer for certain, except on presentment, indictment by grand jury, etc. (fifth amendment), 673.

opinion of, that distribution of incendiary mail matter may be prohibited by States, 569, 570.

signs call for Philadelphia convention, 264. DIRECT TAX (see TAX). DISABILITY (see INABILITY). DISTRICT OF COLUMBIA �

takes away power of Supreme Court to hear habeas corpus, 818. DRED SCOTT v. SANDFORD �

may not be laid on articles exported from States, 659, 660. on imports and exports may not be laid by States, except for executing inspection laws, 841, 842.

when laid, proceeds shall be for use of United States, 841. State laws levying, are subject to revision by Congress, 841. of tonnage, may not be laid without consent of Congress, 844.

mode of voting for President and Vice-President, how and why changed by twelfth amendment, 701, 702.

certificates of votes of, to whom transmitted and by whom opened and counted, 701, 702.

vested in President of the United States, 693. nature and scope of in the United States, 693, 694.

of each State guaranteed in every other State, 625-627. FEDERAL CONVENTION (see PHILADELPHIA CONVENTION). FEDERAL COURTS �

in dealing with cases on account of character of parties, administer law as State courts would do, 802-804.

argument in, on "common defense and general welfare" and powers of Congress, 478.

Madison in, on change introduced by Constitution as to powers of Congress over naturalization, 558.

Hamilton in, on checks upon power of President as commander-in-chief of army, 579.

Hamilton in, believes bill of rights out of place in Federal Constitution, 687, 688.

on need of compromise as to co-equality of States in Senate, 330, 331. FREEDOM �

object of Constitution to promote, 388. meaning of phrase, according to Hamilton, 475.

first State Constitution of, 253. ratines Constitution of the United States, 276.

opinion of Chief Justice Marshall in, on position of States, 251. GILBERT, SIR HUMPHREY �

three kinds of power necessary to, 74. limits to power of, 75, 106. modes of abuse of power of, 76, 77. two policies of, 80.

Marshall on authority of, in Marbury v. Madison, 64. subordination of, to Body-politic the foundation of American constitutional law, 66.

vetoes resolutions of Congress as to communications between the United States and certain foreign countries, 749, 750.

opinion in Cole v. La Grange, on exercise of taxing power, 79. GREAT BRITAIN �

in Federalist on limits of State and Federal authority over naturalization, 559.

not citizens of United States, under fourteenth amendment, unless naturalized, 559.

INFERIOR COURTS � power to establish, 573. judicial power partly vested in, 755. jurisdiction determined by Congress, 756. number and organization of, 756, 757. possible modes of attaining uniform interpretation through the,

States may levy duties to carry out, 841. INSURRECTION (see REVOLUTION). INTERSTATE COMMERCE �

power of Congress to regulate, not commensurate with power over foreign commerce, 533.

in Penhallow v. Doane's Administrator, on early relation of States to Congress, 235.

Chief Justice Marshall in, as to right of United States to American continent, 181, 182.

how far may express opinion on facts to jury, 685, 686. duty under Constitution, 378.

does not extend to cases begun by citizens of a State against another State, 786.

right of trial by, to be preserved in suits where value in controversy exceeds $20, 682.

facts tried by, not to be re-examined except according to rules of common law, 682, 683.

laws concerning constitution of, etc., how affected by fourteenth amendment, 871-874.

indictment by, necessary to hold persons for certain crimes, 673, 674. exceptions to foregoing requirement, 674, 675.

JURY SYSTEM � origin of, 122. principle of trial by, established in 1688, 152.

claims to, under grants of different States to citizens of same State, to be adjudicated in Federal courts, 796, 797.

at Williamsburg Congress, 205. delegate to Continental Congress, 205. moves Declaration of Independence, 227.

no power in Congress to bestow quality of, 509, 510. use of, prohibited to States, 513-515.

Field in, on constitutional construction, 361. Chase in, on limit to use of taxing power, 493.

LIBERTY � defined, 9. analyzed, 24, 25. duty of man to sustain, 34. relation of, to government, 35. relation to other social facts, 43. increase in demands of, 50. how to be safeguarded, 85. protection to personal, in Magna Carta, 121. provisions for personal, in English Bill of Rights, 152. object of Constitution to secure, 388. may not be taken from individual without due process of law, 676.

to carry on business cannot be granted by Congress, 552. LIENS, MARITIME, 778. LIFE �

may not be taken without due process of law, 676. LIFE, LIBERTY AND PROPERTY �

conflict between State and Federal authority as to traffic in, discussed, 546-549.

prohibition of manufacture for sale as beverage within a State is valid, 546, 547.

manufacture for export from State may not be forbidden, 548. LOAN ASSOCIATION v. TOPEKA �

opinion of Justice Miller in, on government interference in distribution of wealth, 78.

on appropriations and unenumerated powers. 485. on debates of Federal Convention on chartering banks, etc., 517,

on meaning of "privileges and immunities" of citizens, 531, 532. on change introduced by Constitution as to power of Congress over

on power of Congress to construct post-roads, 571. on power of States over militia, 586, 587. on need for guarantee of republican form of government, 636. on subversion of State governments and furnishing of aid by

United States, 640, 641. on limits to treaty-making power, 726. transmits treaty of Ghent and asks for legislation, 728.

concurrent, of both houses of Congress necessary to legislation, 100. MALFEASANCE IN OFFICE �

establishes authority of State Constitutions, 64 MARQUE AND REPRISAL, LETTERS OF �

in McCulloch v. Maryland on nature of Constitution of the United States. 294, 295.

interprets commerce power in compact with Virginia, 519. MARY, QUEEN OF SCOTLAND �

Chief Justice Marshall in, on nature of Constitution of the United States, 294-296.

on presidential appointments to fill vacancies, 742. MILLER v. UNITED STATES �

on power of United States to confiscate property of Confederates during civil war, 591.

not included under revenue bills, 451. MISDEMEANORS (see HIGH CRIMES AND MISDEMEANORS). MISSISSIPPI CONSTITUTION (see CONSTITUTION OF MISSISSIPPI). MISSOURI COMPROMISE �

dates in England from adoption of English Bill of Rights, 150. MONARCHY, ENGLISH �

grant of, illegitimate exercise of government authority, 77. laws creating, are subversive of basis of property, 33.

on need for harmony in forms of government in a federation, 635. MONTFORT, SIMON DE (see LEICESTER). MORMON CHURCH �

power over, asked for by Continental Congress, 260. demand acceded to by Virginia, 260.

power of Congress to provide and maintain, 580. power differs how, from that over army, 580.

on jurisdiction of Parliament over American colonies, 185. unfortunate policy of, 204.

constitutional rights of, violated by Congress during civil war, 595. NORTHWEST TERRITORY �

power of, given to President, except in impeachment cases, 422, 719. PARLIAMENT �

accommodation of white and black in separate coaches not unconstitutional within States, 857-859.

though granted by Congress, States may forbid sale of articles to which applied, 551.

on preamble to Constitution of the United States, 292. PENHALLOW v. DOANE'S ADMINISTRATOR �

may not be deprived of life, liberty, etc., without due process, 854. PETITION �

proposition in, regarding use of taxing power to pay debts and provide for general welfare, 471.

debate and verdict of, on issue of bills of credit and on legal tender quality, 508-510.

history of discussions in, on organization and functions of executive department, 699, 700. PHILIP II., OF SPAIN �

declares against taxation without popular consent, see MASSACHUSETTS, 190. POLICE POWER �

PRESIDENT OF THE UNITED STATES � relation of to legislation, 100. appointment and powers of, 320, 321. evidence from powers of, on nature of the Union, 322. when tried by Senate on impeachment, Chief Justice must preside, 409.

provisions as to trial of, on impeachment, 409. for what subject to impeachment, 410, 411. penalty if impeached and convicted, 410, 411. power to call special session of Congress, 433, 434. responsibility to constituency, 444, 445. veto power vested in, why and how, 452-455. how exercises veto power, 455, 456. may not plunge country into war without at least tacit declaration

to call out militia when needed, 581. commander-in-chief of militia, 581-584. must be governed by rules for regular forces, in controlling militia,

may not suspend writ of habeas corpus, 643-645. has no power to declare war or suppress rebellion, 645. hence has no authority over writ of habeas corpus, 646, 647. usurps power to suspend writ. 648, 649. executive power vested in, 693, 694. term of office, 694, 695. manner of electing, 695, 696. mode of electing, how and why changed by twelfth amendment,

number of electoral votes required for election of, 704. mode of election in case electoral colleges fail to make a choice, 704-

unexpected working of system of electing, 708-710. needed reforms in system of electing, 710. qualifications for election as, 711.

succeeded by Vice-President in case of "inability," 711, 712. "inability" consists of what, and is how determined, 712-714. compensation of, rules concerning, 714. takes oath of office, how and when, 714, 715. powers and duties of, 714-752. duties as commander-in-chief, 716-718. power over military forces, how limited by war power of Congress,

may ask for opinions of executive officers in writing, 718, 719. may grant pardons and reprieves, when, 719, 720.

limitations on, in matter of making treaties, 724, 726. appointing power of, 732-740. power to remove officers, 734-736. can create offices and appoint to them, when, 736-738. power of, to fill vacancies, 740.

duty to give Congress information and recommend measures, 743. power to adjourn Congress, 743, 744. duty to receive ambassadors, etc., 744-748. duty to see that laws are faithfully executed, 748. as agent of Congress in carrying into effect a declaration of war,

grant of, illegitimate exercise of government authority, 76. PRIVILEGES AND IMMUNITIES �

of citizens, clause relating to, bears how on commerce power of Congress, 530-532.

security of private, how provided for by Magna Carta, 121. PROPRIETARY GOVERNMENT �

laws on, passed by States do not exercise power to regulate commerce, 535. QUEEN'S COUNSEL �

State tax on agents of interstate, is void. 544. operations of interstate, may not be taxed by States, 545. property of interstate, may be taxed by States, 545.

never passed upon by Supreme Court, 597. would never have been sanctioned by Supreme Court. 597. nominally passed under clause guaranteeing republican form of government, 63S, 639.

discussions on. of President, in Philadelphia Convention, 697, 698. feeling concerning, of President, 715,

peculiar conditions of, in England, 135. attitude of Henry VIII. toward, 136. strengthened under Edward II., 139,

REFORM BILL � effect of, 50. passage of, 50. origin and nature of, 153. supported by William IV., 154.

power of, how checked by Senate, 100. as representative of the people themselves, 319. mode of election of members of, adopted by Federal Constitution,

basis of representation in, chosen by Federal Convention, 332-337. members of, cannot be appointed to newly-created offices, 391.

members cannot hold office, 391. period of election of members, 393. members, by whom elected, 393, 391 qualifications of electors, 394. suffrage for, fixed by the States, 394. qualifications of members as to age, citizenship and residence, 394,

States powerless to fix qualifications for membership in, 395. members, how apportioned among States, 395, 396. size of, how determined, 396. vacancies in, how filled, 398. speaker, how elected, 399. power of impeachment belongs to, 399. power over own members, 415, 428, 429. articles of impeachment drawn by, 423. judge of qualifications of members, 426. quorum, how constituted, 427. must keep journal, 430. meaning of quorum in, 432, 433. adjournment of, 433, 434. power to punish intrusion on, 434-437. instances of exercise of this power, 435-437. members, how paid, 437, 438. members, when privileged from arrest, 438-440. freedom of speech in, 440, 441. right to make inquiries, how secured, 446. revenue bills must originate with, 446. prescribes own order of proceedings. 456. intended exercise of functions by, as to taxation, how transferred

at present, 507. functions in electing President of the United States in contested

adjournment of, may be made by President, 743, 744. adjournment of, how regulated, 744.

provisions of Constitution guaranteeing, 634. originally proposed in Randolph's plan for a Constitution, 635. Madison on new provisions for guarantee of, 636. clause guaranteeing, not inconsistent with slavery, 637. clause not applicable to case of Texas, 685. reconstruction acts passed under clause guaranteeing, 638, 639.

apply to things and persons not in transitu, 534. may not be Used as pretext to regulate commerce, 539, 540. Brown v. State of Maryland, as illustrating, 539, 540. of people, not infringed by enumeration of certain rights in Constitution (ninth amendment), 687.

assumptions of, 42, 47. issues involved in, 96-99. bearing of, on history of representation, 98, 99.

assumptions of, 42, 47. issues involved in, 96. bearing of, on theory of representation, 96.

a charter government, 192, 193. accedes to call of for Continental Congress, 205. attitude toward First Continental Congress, 206. becomes a State, 223.

action as to Declaration of Independence, 230. first State Constitution of, 255. not represented in Federal Convention, 269. ratifies Constitution of United States, 280.

evidence from history of, as to ratification of Constitution by the States, 284.

power of, how checked by House of Representatives, 100. as the representative of the States, 319. mode of election of, adopted by Federal Convention, 328-332. members cannot hold offices or be appointed to newly-created ones, 391.

SENATE (continued) � composition of, 400. provisions as to members of, 400. object in method of appointment of members to, 400. exact mode of election to, left doubtful by the Constitution, 401. membership, why small, 401. forecast as to probable size of, 401. membership in, why longer than in House, 401. renewal of membership every three years, how arranged for, 402,

temporary vacancies, how filled, 403, 404 vacancies cannot be filled until they occur, 404 qualifications of members compared with those for Representatives

proposed change in mode of electing to, 406. presiding officer is the Vice-President of the United States, 406. history of presiding officer of, 406, 407. other officers, how chosen. 407. power to try impeachments, 408.

expediency of trying impeachments through the Senate, 408. Story and Rawle on trial of impeachments by, 408. is best available tribunal for such trial, 408, 409. presided over by Chief Justice when President of United States is,

two-thirds of those present required to convict, 409. functions of presiding officer, 410.

judgment in case of impeachment extends how far, 410. power over own members, 415, 428, 429. procedure in case of impeachment, 424, 425. judge of qualifications of members, 426. quorum, how constituted, 427. must keep journal of proceedings, 430. yea and nay vote, when to be recorded, 430, 431. meaning of quorum in, 432, 433. adjournment of, 433, 434 power to punish intrusion on, 434, 435. payment of members, 437, 438. members, when privileged from arrest, 438-440. freedom of speech in, 440, 441. right to make inquiries, how secured, 446. power as to revenue bills, 446-451. prescribes own order of proceedings, 456. functions of president of, in election of President of the United

adjournment may be made by President, when, 743, 744. adjournment, how regulated, 744

freedom of, certain how affected before civil war by question of commercial transitus, 554.

defined, 2. in whom vested, 60. to whom delegated, 60. nature of, 60-67. defined by Blackstone, 61. provisions of Magna Carta regarding, 63. taken from people by constitutional extensions, 67. in original colonies, 202. rights of, reserved by the States, 244, 245. of States, how shown in sundry cases, 251, 252. not possessed by "United States," 300. resides in States, etc., 301, 303.

relations between, and Federal, 764, 765, 767-769. relations between, and Supreme Court of United States, 797-800. may not be interfered with by Congress or Federal courts, 800-802. may take jurisdiction of cases arising under Constitution or laws

of United States, 804-806. removal of cases from, to Federal courts, principles for, 810-815.

retain original rights under Articles of Confederation, 244, 245. enter into "firm league of friendship," 246. other stipulations of and reservations in Articles of Confederation,

sovereignty of, established in sundry cases, 251, 252. first Constitutions of, show reservation of sovereignty, 256. possess power to regulate commerce under Confederation, 261. copy of Constitution sent to the several, for ratification, 274. reservation of power to, desired by Federal Convention, 281, 282. ratification of Constitution by each of the, necessary to formation

why not named in preamble to Constitution, 297, 300. peoples of, only people who could ordain Constitution, 301. sovereignty of. recognized by Constitution of United States. 303. reserved powers of, guaranteed and explained by tenth amendment,

by eleventh amendment, 307. Hamilton on status of, in suits, 312, 313. represented by the Senate, 318, 319. status of, how shown in composition of legislative, executive and

judiciary departments, 318-324. final conclusion as to status of. in the Union. 324, principle of co-equality of, in Senate, accepted by Federal Convention. 329-332. powers of, over citizenship abridged by fourteenth amendment. 343-

tenth amendment on powers prohibited and reserved to, 355. evidence on source of powers of, 356, 357. John Marshall on source of powers of, 357. exercise of taxing power by, 372-374.

legislative powers not granted to Congress are reserved to. 392. cannot fix qualifications for membership in House of Representatives, 395. legislatures appoint Senators, how, 400.

prohibited from issue of coin, etc., 513-515. may emit bills of credit, but not as currency, 514. commerce between, regulated by Congress, 519. power of, to interdict trade under Articles of Confederation, 528. citizens of each of the, entitled to immunities of citizens in each of the others (bearing of this clause on commerce power of Congress), 530-532. Justice Miller on power of States over privileges and immunities

have power over things and persons not in transitu, 534 Marshall on meaning of "commerce among the several States,"

may inspect articles, under reserved powers. 541. may tax drummers under what conditions, 543, 544. principles of taxation by, on interstate commerce, 544-546. conflict between Federal authority and authority of, as to traffic in

liquor, 546-549. re served powers of, must not be infringed by exercise of commerce

importation of slaves into, could not be forbidden by Congress, 555. rights of, must not be trespassed upon, unless plainly violating the

National Constitution, 556. may not impair obligation of contracts, 559, 560. powers of, as to bankruptcy (co-ordinately with Congress), 561. may pass bankrupt laws, but such laws are subordinate to those of

citizens only, 562, 563. may not coin money, etc., 563. may punish counterfeiting, 565. may exercise postal power where not interfering with postal power

of Congress, 507. may, according to Attorney-General Cushing, prohibit distribution

laws of, forbidding use or sale of articles, are paramount to copyrights or patents granted by Congress, 573.

may not grant letters of marque and reprisal, 57S. or engage in war unless actually invaded, 578.

may not keep troops or ships of war in time of peace without consent of Congress, etc., 582, 583.

powers of, are all those not delegated to United States by Constitution, 689-692.

controversies between, fall under jurisdiction of United States, 761. discussed, 784, 785.

controversies between one of the, and citizens of another of the, fall under jurisdiction of the United States by terms of original Constitution, 761.

controversies between citizens of different, fall under jurisdiction of the United States, 761.

vessels in possession of sheriffs under process of, cannot be seized under admiralty jurisdiction of United States. 781.

may not be sued in Federal courts by citizens of other States (eleventh amendment), 786.

not decided whether States may be sued in Federal courts by foreign States, 792.

who is citizen of, in legal controversies, 792-795. corporation as citizen of, 793-795. courts of, how related to Supreme Court, 797-800. limitations on power of, 821-874. may enter into no treaty, alliance, etc., 822, 823. may not grant letters of marque, 823. may not coin money, 823, 824 or emit bills of credit, 824.

or make anything but gold and silver coin a tender, 825-827. or pass any bill of attainder, ex post facto law, or law impairing obligation of contracts, 827-840. may not impair own contracts, 829. are bound how by charters of corporations, 829-836, may not grant titles of nobility, 840, 841. may lay no duties except those necessary for executing inspection

may not lay duties of tonnage without consent of Congress, 844. or keep troops or ships of war in time of peace, 844. 845. or enter into compact with other States, etc., 345, 846. have large majority of all powers of government, 846-848. power to maintain slavery removed by thirteenth amendment, 848,

forbidden to abridge privileges or immunities of citizens, etc. (fourteenth amendment), 851-854. may not deprive persons of life, liberty, etc., without due process,

police power of, how affected by fourteenth amendment, 859, 860. may regulate railway rates, etc., despite fourteenth amendment,

on jurisdiction in original American colonies, 185. STOCKDALE v. HANSARD � principle involved in, 175.

equivocal character of "one people" as used by, 202. on nature of Continental Congress, 205, 206, 210. on action of "people" in constituting, 209. on colonies as single Body-politic, 210. on Continental Congress as sovereign, 213. on Declaration of Independence, 233.

in Martin v. Waddell, on sovereignty of the United States, 237. on interpretation of preamble to Constitution of the United States,

in Martin v. Hunter, on relation of States to the United States, 360. on common defense and general welfare, 479. wrong view of, on original intent of common defense and general

on lack of power of Congress to appropriate money refuted, 504 on faulty method prescribed by Constitution for apportioning direct taxes, 505.

on injurious character of legal tender power, 512. on conditions which may be attached by Congress to admission of

on Teutonic influences in England, 109. on Saxon institutions in England, 114. on composition of witenagemot, 117. on composition of Parliament under Edward I., 125. SUBJECT-MATTER �

exercise of appellate jurisdiction of, through writ of habeas corpus, 815, 816.

case of, is instance of violation of constitutional provisions as to writ of habeas corpus, 650.

may be specially applied to corporations despite fourteenth amendment, 864, 865.

may not be used in aid of commercial enterprises, 496. or of schools in the States. 497.

nature of power exercised by Congress over, 605. may be acquired by Congress, 605-608.

nature of, 340, 341. effect of on Constitution, 341. principles of, 342, 343. quoted and discussed, 848-850.

of nobility, not to be granted by United States or accepted by officers thereof from foreign powers, etc., 664

beginning and end of, as defined by courts, 548-550. how affected certain slaves before civil war, 554.

a subject for impeachment, 416. history of English law of, 616-618. provisions of Constitution on, analyzed, 618-621. defined, 619. conviction of, 620.

of executive department, 321. of judiciary department, 321. nature of, how affected by civil war, 338-348. object of Constitution to form more perfect, 382. UNION, FEDERAL � nature of, 72, 73. income of, 83. principle of, 105, 106. UNION OF AMERICAN COLONIES �

protective, proposed under William and Mary, 196. rejected by Virginia, 197. second attempt to establish, 197. UNITED STATES OF AMERICA �

tenth amendment, 304-307. Choate on nature of, 314-316. government of, is what, 318. Chief Justice Waite in, on relation of powers of States, etc., of

United States, 364, 365. power to blockade ports of Confederacy, 588. peculiar status of, during civil war, 589, 590. power to confiscate property of Confederate citizens during civil

history of cession of Northwest Territory by Virginia to, 602-604. guarantees republican form of government to States, 634. guarantees States against domestic violence, 640. when to send aid in such cases, 640. may not grant titles of nobility, 664. powers not delegated to, by Constitution, are reserved to States or

to the people (tenth amendment), 689. cases to which United States is a party fall under jurisdiction of,

on right of military commission to try northern citizen during civil war for alleged disloyalty, 595.

VETO POWER � object of, 452, 453. nature of, 454, 455. how exercised, 455, 456.

loses place as president of Senate if obliged to fill position of President of the United States, 407.

attitude of, toward First Continental Congress, 208. becomes a State, process reviewed, 223-226. conveys territory to United States, 250.

bearing of transfer on doctrine of reserved rights of States, 250. first State Constitution of, 255, 256.

grants Continental Congress power as to navigation, 260. provides for delegates to Philadelphia convention, 265. interprets commerce power in compact with Maryland, 519. cedes Northwest Territory to United States, 602-604. consent of, necessary to make Northwest Territory "free" territory, 604.

VIRGINIA CONSTITUTION (see CONSTITUTION OF VIRGINIA). VIRGINIA, CONSTITUTIONAL CONVENTION OF �

debates on preamble to Constitution of the United States, 291-293. VON HOLST � :

in United States v. Cruikshank, on relation of powers of States and of United States, 364, 365.

power of Congress to make, 576. why usual, 576. words "to declare," defined, 577.

WASHINGTON, GEORGE � at Williamsburg Congress, 205. delegate to continental Congress, 205. elected General, 219. commission of, how issued, 219. large powers of, vested in, 221.

evidence from status of, as to nature of continental Congress, 221. on need for a Constitution, 262. president of Philadelphia convention, 266.

defines "privileges and immunities" in Corfield v. Coryell, 532. explains "privileges and immunities" of citizens, 627, 628.

sundry rights of, confirmed by Magna Carta, 120. WILLIAM AND MARY, OF ENGLAND �

stenographic notes on evidence of, living at time of first trial may be used at second trial, 857.

may be obtained by accused by compulsory process of law, 680. WOLSEY, CARDINAL �